Milliken v Bradley Vol. 2 Brief Collection
Public Court Documents
January 1, 1973 - January 1, 1974
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Brief Collection, LDF Court Filings. Milliken v Bradley Vol. 2 Brief Collection, 1973. a51cfd5f-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/90db1f49-3f18-4f4d-9247-6e22427d509d/milliken-v-bradley-vol-2-brief-collection. Accessed September 18, 2025.
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In t h e
intprem? (£xmvt of % Itttfrfr States
October Term, 1973 \\
No. 73-434
V ° c / -\>
4 ' C
W illiam G. Melliken, et al.,
Petitioners,
vs.
Ronald G. Bradley, et al.
Respondents.
No. 73-435
A llen Park Public Schools, et al.,
Petitioners,
vs.
Ronald G. Bradley, et al.
Respondents.
No. 73-436
The Geosse Pointe Public School System, et al.,
Petitioners,
YS.
Ronald G. Bradley, et al.
Respondents.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR RESPONDENTS
Nathaniel R. Jones
1790 Broadway
New York, New York 10019
Louis R. Lucas
W illiam B. Caldwell
525 Commerce Title Bldg.
Memphis, Tennessee 38103
Paul R. D imond
210 Bast Huron Street
Ann Arbor, Michigan 48108
J. Harold Flannery
Robert Pressman
Larsen Hall, Appian Way
Cambridge, Mass. 02138
Jack Greenberg
Norman J. Chachkin
10 Columbus Circle
New York, New York 10019
Elliott Hall
950 Guardian Building
Detroit, Michigan 48226
Attorneys for Respondents
Ronald Bradley, et al.,
Plaintiffs Below
TABLE OF CONTENTS
Table of Authorities ........................................................ iii
Questions Presented ........................................................ 1
Constitutional and Statutory Provisions Involved....... 2
Counter-Statement of the Case ..................................... 2
A. Nature of Review ....... .......................... ............. 2
B. The Proceedings Below ..................................... 11
1. Preliminary Proceedings .... 11
2. Hearings on Constitutional Violation ......... 16
3. Remedial Proceedings .................................... 19
a. The Practicalities of the Local Situation 19
b. The District Court’s Guidance by Settled
Equitable Principles and Its Order to
Submit Plans .................. 23
c. The Procedural Status of Suburban
Intervenors .............................................. 26
d. Hearings and Decision on Plans Limited
to the D S D ................................................ 27
e. The Hearings and Decision on “Metro
politan” Plans ........................................... 28
4. Appellate Proceedings .................................. 32
5. Proceedings on Remand ............. 37
Summary of Argument................. 38
PAGE
11
A rgument—
I. Introduction ............................................................ 40
II. The Nature and Scope of the School Segrega
tion of Black Children by the Detroit and State
Authorities Provided the Correct Framework
for the Lower Court’s Consideration of Relief
Extending Beyond the Geographic Limits of the
Detroit School District ....... ..... ........................ . 43
III. Based Upon Their Power and Duty to Achieve
a Complete and Effective Remedy for the Viola
tion Found, Taking Into Account the Practical
ities of the Situation, the Courts Below Were
Correct in Requiring Interdistrict Desegrega
PAGE
tion ........................................ .................................. 53
IV. The Actions by the Lower Courts to Date Have
Not Violated Any Federally Guaranteed Pro
cedural Right of Suburban School Districts....... 61
A. In the Circumstances of this Case, Rule 19
and Traditional Principles of Equity Juris
prudence Do Not Require the Joinder of
Several Hundred Local Officials Where the
Parties Already Before the Court Can Grant
Effective Relief and There Remains a Sub
stantial Uncertainty Whether and How Their
Interests Will Be Affected, If At A l l .......... 67
B. Petitioner and Amici School Districts Have
Not Been Denied Any Procedural Rights
Guaranteed to Them By the Fifth and Four
teenth Amendments .............. ......................... 74
Conclusion ................................................................. ............ 78
N ote on F orm of R ecord Citations ............ ............. ......... 80
I l l
T able oe A uthorities
Cases: page
Aaron v. Cooper, 156 F. Supp. 220 (E.D. Ark. 1957),
afPd sub nom. Faubus v. United States, 254 F.2d 797
(8th Cir. 1958) ............................ ................................ 71n
Alexander v. Holmes County Bd. of Educ., 396 U.S. 19
(1969) ........ ........... ........ ............ ..... 24n, 27
American Const. Co. v. Jacksonville T. & K. R. Co.,
148 U.S. 372 (1893) ................................... .......... ...13n, 43n
Attorney General v. Lowery, 131 Mich. 639 (1902),
aff’d 199 U.S. 233 (1905) _________ _______ ....8n, 71, 76n
Baker v. Carr, 369 U.S. 186 (1962) .......... .................... 51
Berry v. School Dist. of Benton Harbor, Civ. No. 9
(WJD. Mich. February 3, 1970) ................................. 22n
Bradley v. Milliken, 468 F.2d 902 (6th Cir.), cert, de
nied, 409 U.S. 844 (1972) ............................................ 25n
Bradley v. Milliken, 438 F.2d 945 (6th Cir. 1971) 15
Bradley v. Milliken, 433 F.2d 897 (6th Cir. 1970) ___ 15
Bradley v. School Bd. of Richmond, 462 F.2d 1058 (4th
Cir. 1972), aff’d by equally divided Court, 412 U.S.
92 (1973) ......................... ........................ .......19n, 60n, 61n
Bradley v. School Bd. of Richmond, 51 F.R.D. 139
(E.D. Ya. 1970) ............ .................... ................... ...... 75
Brewer v. School Bd. of Norfolk, 397 F.2d 37 (4th Cir.
1968) .............. ........ ................................................. 8n
Broughton v. Pensacola, 93 U.S. 266 (1876) ............... 8n
Brown v. Board of Educ., 347 U.S. 483 (1954) ___ Passim
Brown v. Board of Educ., 349 U.S. 294 (1955) .......3,5,
13n, 40, 59
Brunson v. Board of Trustees, 429 F.2d 820 (4th Cir.
1970) ................................... .......................................... 3On
Carrington v. Rash, 380 U.S. 89 (1965) 58
IV
Carter v. West Feliciana Parish School Bd., 396 U.S.
290 (1970) ..................... ....................... -.........-............ 24n
Cisneros v. Corpus Christi Independent School Dist.,
467 F.2d 142 (5th Cir. 1972), cert, denied, 37 L.Ed.2d
1041, 1044 (1973) .......................................................... 7n
City of Kenosha v. Bruno, 412 U.S. 507 (1973) ......... 76n
City of New Orleans v. New Orleans Water Works Co.,
142 U.S. 79 (1891) ................................... - ................. 77n
Civil Rights Cases, 109 U.S. 3 (1883) .......................... 3
Commanche County v. Lewis, 133 U.S. 198 (1890) .... 8n
Comstock v. Group of Inst’l Investors, 335 U.S. 211
(1948) ........................................................................... 43n
Connecticut G-en’i Life Ins. Co. v. Johnson, 303 U.S.
77 (1938) ................................................................... 76n
Cooper v. Aaron, 358 U.S. 1 (1958) .......8n, 42n, 49, 50n, 64n
Davis v. Board of School Comm’rs, 402 U.S. 33 (1971) 5,
10, 23,41
Davis v. School Dist. of Pontiac, 443 F.2d 573 (6th
Cir.), cert, denied, 402 U.S. 913 (1971) .................. 8n
Davis v. School Dist. of Pontiac, 309 F. Supp. 734
(E.D. Mich. 1970), aff’d 443 F.2d573 (6th Cir.), cert.
denied, 402 U.S. 913 (1971) ......... ................................ 22n
Deal v. Cincinnati Bd. of Educ., 369 F.2d 55 (6th Cir.
1966), cert, denied, 389 U.S. 847 (1967) .................... 45
Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856) 3
Edgar v. United States, 404 U.S. 1206 (1971) ............ 49n
Esses Public Road Bd. v. Skinkle, 140 U.S. 334 (1891).. 77n
Evans v. Buchanan, 281 F.2d 385 (3d Cir. 1960) ....... 66
Evans v. Buchanan, 256 F.2d 688 (3d Cir. 1958) ....56, 66, 71
Ex parte Virginia, 100 U.S. 339 (1880) .......... 3, 8n, 41n, 55
Ex parte Young, 209 U.S. 123 (1908) ........................... 49n
PAGE
V
PAGE
G-omillion v. Lightfoot, 364 U.S. 339 (1960) ................. 8n
Graham v. Folsom, 200 U.S. 248 (1906) ......... ........... . 8n
Graver Mfg. Co. v. Linde Co., 336 U.S. 271 (1948)....13n, 43n
Green v. County School Bd., 391 U.S. 430 (1968) .......5, 7n,
10, 41, 47, 55
Griffin v. County School Bd. of Prince Edward County,
377 U.S. 218 (1964) ............ ......................50, 70, 71n, 74n
Griffin v. State Bd. of Educ., 239 P. Supp. 560 (E.D.
Va. 1965) .....................................................................32, 71
Hague v. C.I.O., 307 U.S. 496 (1939) ............................. 77
Haycraft v. Bd. of Educ. of Louisville, No. 73-1408
(6th Cir., Dec. 28, 1973) .......... ..... .................. ......... 48n
Higgins v. Grand Eapids Bd. of Educ., Civ. No. 6386
(W.D. Mich. 1973) ................................ ......... ...... ....... 22n
Hoots v. Commonwealth of Pennsylvania, 359 F. Supp.
807 (W.D. Pa. 1973) .......................................56, 66, 70, 71
Hunter v. Erickson, 393 U.S. 385 (1969) ____________ 14n
Hunter v. Pittsburgh, 207 U.S. 161 (1907) ......... ..... 71, 76
Husbands v. Commonwealth of Pennsylvania, 359 F.
Supp. 925 (E.D. Pa. 1973) ________ ___ _________70, 71
James v. Yaltierra, 402 U.S. 137 (1971) ........................ 59
Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972), cert, de
nied, 37 L.Ed.2d 1041 (1973) .................................... 7n
Kelley v. Metropolitan County Bd. of Educ., 463 F.2d
732 (6th Cir.), cert, denied, 409 U.S. 1001 (1972)....42, 62n
Kelley v. Metropolitan County Bd. of Educ., Civ. No.
2094 (M.D. Tenn., June 28, 1971), aff’d 463 F.2d 732
6th Cir.), cert, denied, 409 U.S.1001 (1972) .......... 31n
Kentucky v. Indiana, 281 U.S. 163 (1930) ................ . 72
Keyes v. School Dist. No. 1, 413 U.S. 189, 37 L.Ed.2d
548 (1973) ................ .................... .................... .......Passim
VI
Lane v. Wilson, 307 U.S. 268 (1939) ........................... 14n
Lau v. Nichols, 42 IJ.S.L.W. 4165 (Jan. 12, 1974) ....... 65n
Lee v. Macon County Bd. of Educ., 267 F. Supp. 458
(M.D. Ala.), aff’d per curiam 389 TJ.S. 215 (1967) .... 66
Lee v. Nyquist, 318 F. Supp. 710 (W.D.N.Y.), aff’d per
curiam, 402 U.S. 935 (1971) .............. ........................ 14n
Lemon v. Bossier Parish School Bd., 240 F. Supp. 709
(W.D. La. 1965), aff’d 370 F.2d 847 (5th Cir. 1967).... 65n
Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803) .......... 78
Mobile v. Watson, 116 U.S. 289 (1886) ................... ...... 8n
Monroe v. Board of Comm’rs, 391 U.S. 450 (1968) __ 10
Mount Pleasant v. Beckwith, 100 U.S. 514 (1879) ...... 8n
NAACP and Taylor v. Lansing Bd. of Educ.,------F.
Supp.------ (W.D. Mich. 1973) ...... ............................... 22n
Neal v. Delaware, 103 U.S. 386 (1881) .......... ............... 3
Newburg Area Council, Inc. v. Bd. of Educ. of Jeffer
son County, No. 73-1403 (6th Cir., December 28,1973) 48n
New Jersey v. New York, 345 U.S. 369 (1953) .........72, 77n
Northwestern Nat’l Life Ins. Co. v. Biggs, 203 U.S. 243
(1906) ........................ ........... ........................................ 78
Oliver v. School Dist. of Kalamazoo, 346 F. Supp. 766
(W.D. Mich.), aff’d 418 F.2d 635 (6th Cir. 1971),
on remand, Civ. No. K-98-71 (Oct. 4, 1973) .............. 22n
Plessy v. Ferguson, 163 U.S. 537 (1896) ..."....3, lOn, lln , 78
Provident Bank v. Patterson, 390 U.S. 102 (1968)..68n, 69n
Raney v. Board of Educ., 391 U.S. 443 (1968) .......... . 10
Reynolds v. Sims, 377 U.S. 533 (1964) ........ .............8n, 55
Robinson v. Shelby County Bd. of Educ., 330 F. Supp.
837 (W.D. Tenn. 1971), aff’d 467 F.2d 1187 (6th
Cir. 1972) ........ ....... ...................................................... 70n
PAGE
V l l
San Antonio Independent School Dist. v. Rodriguez,
411 U.S. 1 (1973) ..................................................~58n, 59
Santa Clara County v. Southern R. Co., 118 U.S. 394
(1886) .......................................... .................. ............... 76n
School Dist. of Ferndale v. HEW, No. 72-1512 (6th
Cir., March 1,1973) ................ ................. ..............20n, 22n
Schrader v. Selective Service System Local Bd. No. 76,
329 F. Supp. 966 (W.D. Wis. 1971) ................ ....... . 64n
Shapiro v. Thompson, 394 U.S. 618 (1969) ................ . 59
Shapleigh v. San Angelo, 167 U.S. 646 (1897) ___ ____ 8n
Slaughter House Cases, 83 U.S. (16 Wall.) 36 (1873) .. 3
Sloan v. Tenth School Dist., 433 F.2d 587 (6th Cir.
1970) __________ __ ________ _____________ _____ 8n
South Carolina v. Katzenbach, 383 U.S. 301 (1966) .... 76
Spangler v. Pasadena City Bd. of Educ., 311 F. Supp.
501 (C.D. Cal. 1970) ................ ....... ........ ..... ............. 8n
Spencer v. Kugler, 326 F. Supp. 1235 (D.N.J. 1971),
afPd per curiam 404 U.S. 1027 (1972) .............. .....42n, 59
Stamps and United States v. Detroit Edison Co., 365
F. Supp. 87 (E.D. Mich. 1973) ................................. 7n
Strauder v. West Virginia, 100 U.S. 303 (1880) .......... 3
Sullivan v. Little Limiting Park, 396 U.S. 229 (1969) .. 33n
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S.
1 (1971) ............. ...................................................... .passim
Trenton v. New Jersey, 262 U.S. 182 (1923) ..... ....... ..... 77
Turner v. Warren County Bd. of Educ., 313 F. Supp.
380 (E.D.N.C. 1970) ............ ....................... .................. 49n
United States v. Board of School Comm’rs of Indian
apolis, 474 F.2d 82 (7th Cir. 1973), cert, denied, 37
L.Ed.2d 1041 (1973) ............ ..................................... . 8n
United States v. Georgia, 466 F.2d 197 (5th Cir.
1972) ...................................................................66, 7On, 74n
PAGE
V l l l
United States v. Georgia, 445 F.2d 303 (5th Cir.
1971) ................................................................. 66
United States v. Georgia, 428 F.2d 377 (5th Cir.
1970) ......... ............................................... ................. . 66
United States v. Johnston, 268 U.S. 220 (1925) .......13n, 43n
United States v. School Dist. 151, 404 F.2d 1125 (7th
Cir. 1968) ....................... ..................... ......... ................ 8n
United States v. Scotland Neck City Bd. of Educ., 407
U.S. 484 (1972) .................................................49, 54n, 58n
United States v. State of Missouri, 363 F. Supp. 739
(E.D. Mo. 1973) ........................................................... 55
United States v. Texas Edue. Agency, 321 F. Supp.
1043 (E.D. Tex. 1970), 330 F. Supp. 235 (E.D. Tex.
1971) , aff’d sub nom. United States v. State of Texas,
447 F.2d 441 (5th Cir. 1971), stay denied, 404 U.S.
1206 (Black, J.), cert, denied, 404 U.S. 1016 (1971)..66, 70
PAGE
Welling v. Livonia Bd. of Educ., 382 Mich. 620 (1969).... 65
Western Turf Ass’n v. Greenberg, 204 U.S. 359 (1907).. 77
Wheeling Steel Corp. v. Glander, 377 U.S. 562 (1949).... 76n
Whitcomb v. Chavis, 403 U.S. 124 (1971)—................. . 59
White v. Begester, 37 L.Ed.2d 314 (1973)....,................. 59
Wright v. Council of the City of Emporia, 407 U.S. 451
(1972) ..............................................10,13n, 48, 54n, 58n, 59
Constitution and Statutes:
U.S. Const., Amend. 5 ................................................. 75
U.S. Const., Amend. 1 4 .......... ......................................... 75
28 U.S.C. §1292 .......................................... ...................... 33
28 U.S.C. §1331 (a) ........................................................... 11
28 U.S.C. §1343 ...... ................................................... ....... 11
IX
28 U.S.C. §§2201, 2202 ................ ................ ...........-...... - 11
42 U.S.C. §1981............................. ............................. .......2,11
42 U.S.C. §1983 .................... ......................................2,11,76n
42 TJ.S.C. §1988 ..........................................................2,11, 33n
42 U.S.C. §2000d ........................................................2,11, 65n
Mich. Const. Art. I, § 2 ...................................................... 65
Mich. Const. Art. VIII, §3 ....................... ...... ........... ..... 65
M.C.L.A. §340.69 .......................... ...... .............................. 57n
M.C.L.A. §340.121(d) ...................................................... 57n
M.C.L.A. §340.183 et seq....... ........................................... . 58n
M.C.L.A. §252-53 ............................................... ........... . 65
M.C.L.A. §340.302a et seq. .................................... ........ . 58n
M.C.L.A. §340.355 ............................. 65
M.C.L.A. §340.582 .... 57n
M.C.L.A. §340.583 .... 52n
M.C.L.A. §340.589 ....... 52n
M.C.L.A. §340.1359 ......................................................... 58n
M.C.L.A. §340.1582 ......................................................... 58n
M.C.L.A. §388.171a et seq. (Public Act 48 of 1970) ..... 51
M.C.L.A. §388.681 ....................................... 58n
M.C.L.A. §388.851 .................. 65
M.C.L.A. §388.1010 .......... ................... .................. .... 20n, 65
M.C.L.A. §388.1117 ....................................................... 65
M.C.L.A. §388.1234 ......................................................... 65
PAGE
X
F.E. Civ. P. 19 ...........................................................32, 37, 67
F.E. Civ. P. 21 ...........................................................32, 37, 68
F.E. Civ. P. 54(b) ............................................................. 33
F.E. Civ. P. 6 5 (d )............................................................. 64n
Supreme Court Eule 23(c)(1) — .............—-......... — 42n
Supreme Court Eule 40(1)(d)(2) .......— .... ..... .......... 42n
Other Authorities:
Bureau of the Census, General Social and Economic
Characteristics (1970), Tables 119-120, 125 .......... - 54
Michigan House Journal (1970) .............. ....... .... ......—- 14n
3A Moore’s Federal Practice fll9.107[3] (2d ed. 1972).. 68n
Notes of the Advisory Committee, 1966 Amendments,
Eule 19 .......... ............................................ ...............67, 68n
Opinions of the Attorney General of Michigan .......... 77n
Wright & Miller, Federal Practice and Procedure
(1970) 73n
Ik t h e
Olirort of tlfp Unitpfr
O ctober T erm , 1973
No. 73-434
W illiam G. M illiken , et al.,
Petitioners,
vs.
R onald Gr. B radley, et al.
Respondents.
No. 73-435
A lleh P ark P ublic S chools, et al.,
Petitioners,
vs.
R onald G. B radley, et al.
Respondents.
No. 73-436
T he Grosse P ointe P ublic S chool System , et al.,
Petitioners,
vs.
R ohald G. B radley, et al.
Respondents.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR RESPONDENTS
Questions Presented
1. May the State of Michigan continue the intentional
confinement of black children to an expanding core of
2
state-imposed Mack schools within a line, in a way no less
effective than intentionally drawing a line around them,
merely because petitioners seek to interpose an existing
school district boundary as the latest line of containment?
2. Where further proceedings among all conceivably af
fected petitioner and amici school districts are poised be
low, at which all parties have a meaningful opportunity to
be heard prior to the entry of any injunctive order, should
this Court vacate the prior rulings of the lower courts, dis
miss this case, and hold that the three and one-half years of
prior adversary proceedings between plaintiffs and State
and Detroit defendants are for naught because suburban
school districts were not joined as parties at the outset
of this litigation?
Constitutional and Statutory Provisions Involved
This case involves primarily the application of the
Equal Protection Clause of Section 1 of the Fourteenth
Amendment to the Constitution of the United States. In
addition to the other constitutional and statutory provi
sions cited by petitioners, this case also involves the Thir
teenth Amendment to the United States Constitution and
42 U.S.C. §§ 1981, 1983, 1988 and 2000d, as well as certain
other provisions of Michigan law set forth by Respondents
Board of Education of the City of Detroit, et al.
Counter-Statement of the Case
A. Nature of Review
The Reconstruction Amendments, particularly the Four
teenth, were made part of the United States Constitution
primarily in order to abolish the institution of slavery and
all its trappings so that freedmen and their descendants, as
3
individuals and as a class, could be made not only persons
and citizens in the eyes of the law and this Court (see Bred
Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)), but also
equal to the dominant white class, at least in all the public
affairs and public institutions of and within each of the
States of the Union. Slaughter House Cases, 83 U.S. (16
Wall) 36 (1873); Strauder v. West Virginia, 100 U.S. 303
(1880); Ex Parte Virginia, 100 U.S. 339 (1880); Neal v.
Delaware, 103 U.S. 386 (1881); Civil Plights Cases, 109 U.S.
3 (1883).1 Nevertheless, with the express sanction of this
Court in Plessy v. Ferguson, 163 U,S. 537 (1896), enforced
segregation replaced slavery to perpetuate the second-class
public (as well as private) status and state-imposed badge
of inferiority of black people.1 2 In Brown v. Board of Edu
cation, 347 U.S. 483 (1954), 349 U.S. 294 (1955), the first
of many frontal assaults on public segregation in many
areas, this Court finally repudiated any type of official seg
regation in public schooling precisely because such segre
gation violates the fundamental purpose of the Fourteenth
Amendment as initially construed by this Court. See
Brown I, 347 U.S. at 490-491 and n.5.
1 “ [The Fourteenth Amendment] nullifies and makes void all
state legislation, and state action of every kind, . . . which denies
to any [citizen of the United States] the equal protection of the
laws.” 109 U.S. at 11. The Reconstruction Amendments had as
their “ common purpose” to secure “ to a race recently emancipated,
a race that through many generations have been held in slavery,
all the civil rights that the [white] race enjoy . . . • and in regard
to the colored race, for whose protection the [Fourteenth] Amend
ment was primarily designed, that no discrimination shall be made
against them by law because of their color.” 100 U.S. at 306.
“ [L]ying at the foundation of the [Reconstruction Amendments
was] the protection of the newly-ma.de freeman and citizen from
the oppression of those who had formerly exercised unlimited
dominion over him.” 83 U.S. (16 Wall.) at 71.
i( 2 Dissenting in Plessy, Mr. Justice Harlan prophetically noted
“ [i]n my opinion, the judgment this day rendered will, in time,
prove to be quite as pernicious as the decision made by this tribunal
in the Dred Scott Case.” 163 U.S. at 559.
4
Yet from Brown to this day black children in Detroit
have suffered from just such constitutionally offensive,
state-imposed school segregation. After extensive hearings
the record evidence showed, and the District Court found,
that from at least 1954 through the trial respondent black
children have been intentionally assigned by a variety of
de jure devices to virtually all-black (90% or more black)
schools. (J. 17a, et seq.)* Throughout this period the
pattern was and is unmistakable: State and Detroit school
authorities, operating in lockstep both with pervasive resi
dential segregation throughout the metropolitan area (it
self primarily the product of public and private discrimi
nation, including the widespread effects of de jure school
practices) and with discriminatory state policies, inten
tionally assigned the rapidly growing numbers of Detroit
black children to an expanding core of virtually all-black
schools separate from and immediately surrounded by a
reciprocal ring of virtually all-white schools nearby. The
ring of white schools in some places began within Detroit
proper and in other places at the school district line but
extended throughout the metropolitan area.
At the time of trial over 132,700 black children, 75% of
the total within Detroit, were thus de jure segregated in
this core of 133 virtually all-black schools covering almost
the entire Detroit School District and reaching in many
instances right up to the boundaries of the suburban school
districts; the surrounding suburban school districts served
pupil populations over 98% white (excluding the few his
torically black suburban enclaves, the percentage is well
over 99). (J. 23a-28a; J. 54a-55a; J. 77a-78a; J. 87a).
Thus, as concluded by the Court of Appeals in affirming
* A note explaining record citations follows the body of this
Brief.
5
the District Court’s finding of a massive and pervasive
constitutional violation (J. 118a-159a), “ even if the segre
gation practices were a hit more subtle than the compulsory
segregation statutes . . ., they were nonetheless effective.”
(J. 158a).
Insofar as practicable and feasible, therefore, the lower
courts concluded that such longstanding and massive viola
tion required the complete and effective disestablishment
of the present and expanding, state-imposed core of “black
schools,” now and hereafter, considering the alternatives
available and the practicalities of the local situation, pur
suant to the commands of Brown I and 11; Green v. County
School Board, 391 U.S. 430 (1968); Swann v. Charlotte-
Si ecJclenburg Bd. of Ed., 402 U.S. 1 (1971); and Davis v.
Bd. of School Commr’s, 402 U.S. 33 (1971). (J. 42a, J.50a-
51a; J. 56a, J. 60a; J. 84a; J. 158a-159a, 162a, 176a-189a).
Based on the record evidence the District Court found that
a plan of actual desegregation limited to the Detroit School
District would only perpetuate the violation: the core of
schools racially identified by de jure acts as “black,”
immediately surrounded by a ring of virtually all-white
schools, would remain essentially intact. Any remedy
confined within the borders of the Detroit School Dis
trict would merely expand the state-imposed black core
the little remaining way right up to the borders of the
suburban districts. Such narrow relief would “lead directly
to a single segregated Detroit School District overwhelm
ingly black in all of its schools surrounded by a ring of
[suburban schools] overwhelmingly white. . . .” (J. 172a-
173a) due to the environment for segregation already
fostered in the area and the flight of many of the remaining
whites from the Detroit School District to the nearby all-
white suburban sanctuaries. (J. 192-28a: J. 54-55a, J. 87a-
88a; J. 157a-165a; J. 172a-173a).
6
The courts below, therefore, carefully assayed the practi
calities of the local situation, state law and practice, and
the proof to determine whether existing school district
boundaries are absolute barriers to more effective and
complete disestablishment of the state-imposed black core
surrounded by a reciprocal white ring. They were forced
to ask what justification existed for permitting school dis
trict lines to serve as merely the most recent state-created
and maintained racial barrier.
The lower courts ascertained that existing school dis
tricts are subordinate instrumentalities of the state
created to facilitate administration of the State’s sys
tem of public schooling; that the State has the ulti
mate responsibility for insuring that public education
is provided to all its children on constitutional terms
and that no school is kept for (or from) any person
on account of race; that the defendant State Superinten
dent and State Board have considerable affirmative power
over, and the power to withhold necessary aid from, local
school districts to insure their compliance with the com
mands of law; that the existing school district boundaries
are unrelated in many instances even to intermediate and
regional school district lines, and generally bear no rela
tionship to other municipal, county or special district gov
ernments ; that the existing school district boundaries have
been regularly crossed, modified or abrogated for educa
tional purposes and convenience, as well as for segregation;
that the State has acted directly to control local school
districts, including to maintain, validate and augment
school segregation; that existing state law provides de
tailed and time-tested methods for handling the adminis
trative problems associated with pupil transfers across
districts and modifying school district boundaries by an
nexation or consolidation; that any legitimate state interest
7
in delegating administration of public schooling to any
degree in any fashion to local units could be promoted by
a variety of arrangements not requiring that existing school
district lines serve as an impenetrable barrier to desegre
gation across those lines; that for most social and economic
and governmental purposes, the metropolitan area repre
sents one inter-related community of interest for both
blacks and whites, except with respect to schools and hous
ing ;3 and that the Detroit Public Schools are not a separate
3 We do not mean to suggest that blacks as a class have not been
subjected to all variety of other forms of public and private racial
discrimination and intentional segregation in the Detroit area. See,
e.g., Stamps and United States v. Detroit Edison, 365 F. Supp. 87
(E.D. Mich. 1973) (employment discrimination). Rather, we mean
to suggest that enforced separation of black citizens as a group
from whites is primarily evidenced by the racially dual system of
schools and housing. Thus, in this classic school segregation case,
even if public authorities could shift the burden of school desegrega
tion to black parents contrary to Green and Swann, the record
evidence proves that black parents have long been, still are, and for
the foreseeable future will remain effectively excluded from white
schools as long as the only means of gaining admission is purchas
ing or renting a home in the exclusively white residential areas.
(E.g., Ia 156 et seq.; Ha 19— Ha 81 P.X. 184; P.X. 2; P.X. 16A-D;
P.X. 48; P.X. 183A-G-; P.X. 122; 1 Tr. 163; P.X. 25; P.X. 37;
P.X. 38; P.X. 56; P.X. 18A; P.X. 136A-C.) As found by the Dis
trict Court with respect to the entire metropolitan area, black
citizens are generally confined to separate and distinct areas within
Detroit and excluded from the suburbs, “ in the main [as] the result
of past and present practices and customs of racial discrimination,
both public and private, which have and do restrict the housing
opportunities of black people.” (J. 23a). Needless to say, the black
schools are not any more likely to witness an influx of white stu
dents as long as white parents (fleeing Detroit proper, immigrating
for the first time to the Detroit area, or already residing in the
suburbs) remain sentient and the dual pattern persists protected
by school district lines: the black core is the school system main
tained for blacks while favored suburban systems will remain se
curely white behind residential segregation, school district boundary
lines, and whatever new school facilities are needed to accommodate
these “whites only.” (Cf. J. 79a-80a, 87a-88a) Courts of Appeals
currently agree that such effectively exclusionary schooling is an
independent constitutional violation. See, e.g., Cisneros v. Corpus
Christi Ind. Sch. Dist., 467 F.2cl 142, 149 (5th Cir. 1972), cert,
denied, 37 L.Ed2d 1041, 1044 (1973) ; Kelley v. Guinn, 456 F.2d
8
and isolated island of segregation but rather are inextri
cably part of the State System of public schooling.4 (J.
36a-38a; J. 50a; J. 79a-80a; J. 96a.; 137a-140a; 151a; J,
165a-171a).
100 (9th Cir. 1972), cert, denied, 37 L.EcL2d 1041 (1973) ; Davis V.
School Dist. of City of Pontiac, 443 F.2d 573, 576 (6th Cir. 1971),
cert, denied, 402 U.S. 913 (1971) ; U.S. v. Bd. of Sch. Commis
sioners of Indianapolis, 474 F.2d 82 (7th Cir. 1973), cert, denied,
37 L.Ed.2d 1041 (1973) ; U.S. v. School District 151, 404 F.2d
1125 (7th Cir. 1968) J Spangler v. Pasadena City Bd. of Edue.,
311 F. Supp. 501 (C.D. Cal. 1970); cf. Swann, 402 U.S. at 20-21;
Brewer v. Norfolk, 397 F.2d 37, 41-42 (4th Cir. 1968) j Sloan v.
Tenth School District, 433 F.2d 587, 588 (6th Cir. 1970). As the
“ remedy” apparently proposed by petitioners for the massive viola
tion here, such a racially exclusive system of schooling is a mockery.
4 The courts below thus analyzed this case in accordance with
Fourteenth Amendment principles early established and, since
Brown, re-established by this Court:
The constitutional provision, therefore, must mean that no
agency of the State, or of the officers or agents by whom its
powers are exerted, shall deny to any person within its juris
diction the equal protection of the laws. Whoever, by virtue
of public position under a state government . . . , denies or
takes away the equal protection of the laws, violates the con
stitutional inhibition; and as he acts in the name and for the
State, and is clothed with the State’s power, his act is that of
the State. This must be so, or the constitutional prohibition
has no meaning. Then the State has clothed one of its agents
with power to annul or evade it.
Ex Parte Virginia, 100 U.S. 339, 346-47 (1880) • Cooper v. Aaron,
358 U.S. 1, i7-20 (1958). School districts in Michigan are not
separate and distinct sovereign entities, but rather are “ auxiliaries
of the state,” subject to its “ absolute power.” Attorney General
v. Lowrey, 199 U.S. 233, 239-240 (1905), aff’g 131 Mich. 639
(1902). And the State of Michigan’s “absolute power” over its
school districts must be exercised in accord with the supreme com
mands of the Federal Constitution: “ [The Thirteenth and Four
teenth Amendments] were intended to be, what they really are,
limitations of the power of the States. . . .” Ex Parte Virginia,
100 U.S. at 345. Accord, Broughton v. Pensacola, 93 U.S. 266
(1876) ; Mount Pleasant v. Beckwith, 100 U.S. 514 (1879) ; Moliti
v. Watson, 116 U.S. 289 (1886) ; Comanche County v. Lewis, 133
U.S. 198 (1890) ; Shapleigh v. San Angelo, 167 U.S. 646 (1897);
Graham v. Folsom, 200 U.S. 248 (1906); Gomillion v. Lightfoot,
364 U.S. 339 (1960) ; Reynolds v. Sims, 377 U.S. 533 (1964).
9
Viewing these practicalities of the local situation in the
context of the nature and extent of the violation and the
inadequacy of relief confined within the borders of the
Detroit School District, the lower courts determined that
the equitable power of federal courts to disestablish now
and hereafter the present and expanding state-imposed
core of black schools was not limited to the boundaries of
the Detroit School District—precisely because such freez
ing of existing boundaries would merely serve to perpetu
ate in full force the intentional assignment of black chil
dren to a separate core of “black schools,” identified as
such by de jure state action, immediately surrounded by a
ring of all-white schools nearby. With equity power to do
more, however, the lower courts (pursuant to the joint sug
gestions by State defendants and plaintiffs) exercised their
discretion to defer decision on any substantial modification
of existing school districts or school district lines to the
State. Pending such state determination, any desegregation
across school district lines was to be accomplished by the
method least intrusive on existing arrangements, by con
tracts and pupil transfers between the existing school dis
tricts pursuant to the provisions of state law. (J. 80a; J.
177a, J. 188a-189a).
The narrow issue of substance on review by this Court,
then, is whether petitioners’ argument that the school dis
trict lines may be interposed in such circumstances to per
petuate the walling-off of blacks in a state-imposed core of
overwhelmingly black schools separated from a ring of
overwhelmingly white schools only by that line is constitu
tionally acceptable: are existing school district boundary
lines, whose justification on this record is that they are and
have been there, really constitutionally immune? May
school district lines thereby serve to segregate black from
white children in a way that a school zone line {Swann), or
10
super highway {Davis), or newly created school district
line {Wright v. Council of City of Emporia, 407 U.S. 451
(1972)), or other artifact of school administration (Green;
Raney v. Bd. of Ed., 391 U.S. 443 (1968); Monroe v. Bd.
of Commrs., 391 U.S. 450, (1968)), however untainted their
genesis, may not?5 In historic perspective then, if the peti
tioners are correct, all will understand that Brown’s read
has exceeded our grasp: along the existing school district
line may Plessy he reconstructed sub silentio.6
5 Due to the State defendants’ default in failing to comply with
the District Court’s orders, no actual plan of desegregation extend
ing beyond the borders of the Detroit School District has ever been
submitted to or considered by the District Court. (J. 62a-64a). The
appeal to the court below was on an interlocutory basis. (J. 108a;
J. 112a: la 265-266). On remand, proceedings are already under
way among all conceivably interested parties in the District Court
in order to develop and consider such plans and to cure the poten
tial procedural error, ascribed to the District Court by the Court
of Appeals, in failing to give districts potentially affected by any
plan ordered the prior opportunity to be heard. (J. 176a-179a; la
287-302). Review by this Court at this basically interlocutory stage
of the proceedings, therefore, is premature for the reasons previ
ously stated in our Memorandum in Opposition to Petitions for
Writs of Certiorari. Review at this posture, however, does permit
consideration of the pure legal issue wholly free from jockeying
about walk-in schools and reasonable time and distance limitations
for transporting pupils to schools; for here the school district line
separates the black schools on the edge of the black core from many
adjacent, conveniently walk-in, all white schools. Compare Swann,
402 U.S. at 29-31, with Keyes v. School District No. 1, 37 L.Ed.2d
at 572-3, 581 (separate opinion of Powell, J.).
6 Petitioners, public servants serving predominantly white con
stituencies, argue to the contrary, that black plaintiffs premise
their case for relief beyond the Detroit School District on an as
sumption of inferiority of blacks and the per se unconstitutionality
of majority black schools rather than the enforced segregation of
black children as a class from whites. Such a suggestion from
public officials in 1974 is old wine in new bottles; it is no more
and no less than the racial sophistry adopted almost 80 years ago
by this Court in Plessy in rejecting black plaintiffs’ consistent
argument, from Reconstruction to this very day, that “ the enforced
segregation of the races stamps the colored race with a badge of
inferiority” :
If this be so, it is not by reason of anything found in the act,
11
B. The Proceedings Below
1. Preliminary Proceedings
Plaintiffs commenced this action over three years ago,
Angust 18, 1970, invoking the jurisdiction of the District
Court under 28 U.S.C. §§ 1331(a), 1343(3) and (4), and
asserting causes of action arising under 42 U.S.C. §§ 1981,
1983, 1988, 2000d and the Thirteenth and Fourteenth
Amendments to the Constitution. Plaintiffs sought declara
tory (28 U.S.C. §§ 2201, 2202) and injunctive relief against
Michigan’s Governor, Attorney General, Superintendent of
Public Instruction and State Board of Education, and the
Detroit Board of Education, its members and Superinten
dent of Schools,7 alleging de ju re segregation of the Detroit
Public Schools resulting from historic public policies, prac
tices and action. Plaintiffs sought complete and lasting
relief from that segregation, which keeps well over 132,000
black children in a core of over 130 virtually all-black
schools segregated from white children in a ring of virtu
ally all-white schools.
but solely because the colored race chooses to put that con
struction on it, 163 U.S. 537, 551 (1896).
With respect to such ad hominem attacks by petitioners on black
plaintiffs’ goal of eradicating state-imposed segregation completely
and forever, nothing further need be said. However, as petitioners
make this same racial attack on the personal motives of the lower
court judges in ruling on this case (see, e.g., Grosse Pointe Brief
43-45; Allen Park Brief 51; Allen Park Petition 13-14; State Peti
tion 13-14, 35), we feel compelled to set the record straight, point
by point. See infra, pp. 15, 23-25, 30-31. It is sufficient for our
purpose here that petitioners’ suggestion that the lower court
judges are racists at heart in seeking desegregation beyond the
geographic limits of the Detroit School District recalls precisely
the harsh realities of the Plessy rationale in blunting the Four
teenth Amendment until discredited, finally, by the promise of
Brown.
7 The Detroit Federation of Teachers and a group representing
white homeowners within Detroit intervened as parties defendant
prior to trial on the merits.
12
The filing of the complaint was precipitated by the State
of Michigan’s then most recent, direct imposition of school
segregation on these black children. The State, “exercising
what Michigan courts have held to be is ‘plenary power’
which includes power ‘to use a statutory scheme, to create,
alter, reorganize or even dissolve a school district, despite
any desire of the school district, its board, or the inhabits
thereof,’ ” (J. 27a) had acted with unusual dispatch follow
ing a Detroit Board adoption, its first ever, of even a small
scale, two-way high school desegregation attempt along
with a state-mandated decentralization program. In con
junction with a local recall of the Detroit Board members
who supported even this initial effort to breach the dual
structure by assigning white children to black schools, the
legislature passed Public Act 48 of 1970 (la 10-14) as a
direct response to obstruct such action forever.
Act 48 (1) reorganized the Detroit School District (here
after DSD), created racially discrete regional sub-districts
wholly within the DSD, and revalidated the external bound
aries of the DSD, all in the face of alternative proposals to
decentralize school administration in the metropolitan area
across the borders of the DSD to accomplish desegregation
(Compare la 10-14 and la 35 with Ya 91-101 and la 26); (2)
unconstitutionally nullified the previous high school deseg
regation effort of the Detroit Board; and (3) interposed for
the DSD, and no other school district, unconstitutional pupil
assignment criteria of “ free choice” and “neighborhood”
which (as later found by the District Court) “had as their
purpose and effect the maintenance of segregation.”
(J. 27a-28a; see also 433 F.2d 897). On a racial basis the
State maintained inviolate the core of black schools and
singled out the DSD (and its mass of black citizens) for
separate treatment from all other (and overwhelmingly
white) school districts.8
8 In all these respects, the District Court found Act 48 to he one
of the examples where the “state and its agencies, in addition to
Plaintiffs prayed for a preliminary injunction to rein
state the partial plan of high school desegregation adopted
their general responsibility for and supervision of public education,
have acted directly to control and maintain the pattern of segrega
tion in the Detroit schools.” (J. 27a). Petitioners’ arguments that
Act 48 either had no racial purpose (Grosse Pointe Brief 22) or
effect (State Brief 40-41) ignore the entire record evidence of
violation and the context in which this Act was so precipitously
adopted. In this respect, as so many others, petitioners seek to
have this Court review each finding of fact separately and in com
plete isolation from each other fact, historical context, and the
careful deliberations of the District Judge over the whole record
evidence. Such “ fact” ploy is understandable but only clouds the
significant legal and constitutional issue which this Court must
decide. It also is contrary to this Court’s traditional reliance on
district court factual determinations, affirmed by courts of appeals,
in the context of the myriad local conditions presented by different
cases, particularly school segregation cases. See, e.g., Wfight v.
Emporia, 407 U.S. at 466; Swann, 402 U.S. at 28; Brown II, 349
U.S. at 299; United States v. Johnston, 268 U.S. 220, 227 (1925);
Amer. Const. Co. v. Jacksonville T. & K. B. Co., 148 U.S. 372, 384
(1893) ; Graver Mfg. Co. v. Linde Co., 336 U.S. 271, 275 (1948). It
is sufficient for our purposes here with respect to the motive
of Act 48 to note the following: Then Detroit Superintendent
Drachler’s uncontroverted testimony was that Act 48 was “an at
tempt then to turn the door back or the pages back.” (8/29/70
preliminary hearings Tr. 202; see also I lia 244-245). Then Board
President Darneau Stewart, subsequently recalled for his support
of the partial desegregation plan, stated with respect to Act 48,
“ I do regret that the legislature has found it necessary to intervene
in our carefully outlined plans and hopes . . .” (8/29/70 prelim
inary hearings Tr. 327-28).
Petitioners’ citation to the ultimate votes of black legislators
in favor of Act 48 (Grosse Pointe Brief 21-22) is only the most
recent example of the .kind of misleading irrelevancy that peti
tioners have interjected from time to time to divert rather than
advance the inquiry in this case, akin to their implication that
plaintiffs must be ill with self-hate because we prefer constitu
tional schools to separate-but-equal schools. Here, petitioners seek
to obscure the fact that such approval was merely a final vote on
a general bill reflecting political acceptance of the legislative re
ality. Black legislators acceded to the already legislatively man
dated segregation in return for the hope of a modicum of the
same control over the “black schools” as whites maintained over
their white suburban school district enclaves. At earlier stages in
votes on particular parts of the bill, black legislators vociferously
opposed the Act whose purpose and effect were to roll back initial
efforts at desegregation, reimpose segregated pupil assignments,
14
by the Detroit Board but thwarted by Act 48, pending a
full bearing on the merits. After a preliminary bearing,
and ever after insure that white children would not again be as
signed to black schools. For example:
Rep. Vaughn: “ First, the House today, and I think this is
perhaps the saddest day— April 9 will go down in history—
in Michigan history. It is the day the House of Representa
tives, at the State Capitol, Michigan, voted officially to nul
lify the Bill of Rights and the Constitution and violate the
basic laws of the United States Supreme Court. . . . And what
did the State House today say: We must segregate. Nullifica
tion. This is what southern senators do— plot on how to cir
cumvent a basic rule, a basic rule that would bring the schools
together.” House Journal No. 49, p. 1120 (April 9, 1970).
Rep. Mrs. Elliott: “ The passage of this bill is a step back
wards because of the crippling amendments that will continue
to perpetuate segregation.” House Journal No. 49, p. 1122
(April 9, 1970).
Rep. Mrs. Saunders, June 5, 1970, House Journal No. 88, p.
2160: “ I voted no on the Senate substitute for House bill
no. 3913 because I believe it can only have the result of fur
thering and intensifying segregation in education, a segrega
tion which has been contrary to the law of the land since
1954. Many of you sat smugly in Michigan while the southern
states protested the Brown v. Topeka Board of Education
landmark decision. You thought you were so much more vir
tuous in this basic humanitarian tenet of considering all men
as equal and realizing that separate is not, never was, and
never can be equal. . . . I am disappointed— I’m deeply dis
appointed— I ’m ashamed of your action and response to racist
fears. You have helped to both divide and move our society
in a backward direction.” (Emphasis supplied).
Thus, the racial purpose underlying Act 48 is as obvious as any
of the Jim Crow laws. And its pervasive stigmatizing effects ex
tend beyond the borders of the DSD. For with respect to the
segregative pupil assignment criteria, the State intentionally created
what amounts to a racial classification between the DSD and
all other school districts (Cf. Lane v. Wilson, 307 U.S. 268 (1939);
Hunter v. Erickson, 393 U.S. 385 (1969) • Lee v. Nyquist, 318
F. Supp. 710 (W.D.N.Y.), aff’d per curiam, 402 U.S. 935 (1971)),
and thereby affixed the State’s badge of approval on the mainte
nance in the Detroit area of a separate core of black schools
surrounded by a ring of all-white schools. It should be no consola
tion to petitioners that Michigan’s first Jim Crow school law fol
lowed Reconstruction by 100 years. (See also discussion infra,
p. 52).
15
beginning August 27, 1970, the District Court denied all
preliminary relief and dismissed the Governor and Attor
ney General by ruling and order of September 3, 1970.
(Ia 59-63.) On Plaintiffs’ appeal the Court of Appeals for
the Sixth Circuit affirmed the denial of preliminary relief
but held Act 48 unconstitutional insofar as it nullified the
initial steps taken by the Detroit Board to desegregate
high schools and interposed segregative pupil assignment
criteria for the DSD. In remanding for a hearing on the
merits the Court also directed that the Governor and Attor
ney General remain parties defendant. Bradley v. MiI.Hken.
433 F.2d 897 (6th Cir. 1970).
On remand, the plaintiffs sought again to require the
immediate implementation of the Board’s high schqol plan
as a matter of interim relief to remedy some of the mischief
created by the enactment of the unconstitutional statute,
without determination of the more general issues raised
in the complaint. Instead, the District Court permitted the
Detroit Board of Education to propose alternative plans
and on December 3, 1970 approved one of them (Ia 88-97)
(a “free-choice” approach which later proved upon imple
mentation to be not only wholly ineffective but also an
independent violation (J. 54a)); plaintiffs again, appealed,
but the Court of Appeals remanded the matter “with in
structions that the case be set forthwith and heard on its
merits,” stating:
The issue in this case is not what might be a desirable
Detroit school plan, but whether or not there are con
stitutional violations in the school system as presently
operated, and if so, what relief is necessary to avoid
further impairment of constitutional rights. 438 F.2d
945, 946 (6th Cir. 1971) (emphasis supplied).
16
2. Hearings on Constitutional Violation
On April 6, 1971, as directed, the District Court began
the reception of proof on the subject of constitutional viola
tion. For 41 trial days, aided by hundreds of demonstrative
exhibits and thousands of pages of factual and expert testi
mony, the Court supervised a full and painstaking inquiry
into the forces and agencies which contributed to establish
ment of the by-now obvious pattern of racial segregation
in the Detroit public schools.9 This inquiry was more com
prehensive and probed more deeply into the causes of
existing school segregation than any of which plaintiffs’
counsel are aware.
The evidence revealed a long history, both before and
after Brown,10 11 of purposeful official action systematically
facilitating Detroit’s extensive pupil segregation. Virtually
all of the classic segregating techniques which have been
judicially identified, by this Court in Keyes11 and else
where, were employed or sanctioned by Detroit and State
school officials during the two decades from 1950 to 1970:
purposeful rescission of recent desegregation efforts ; racial
gerrymandering of attendance zones, feeder patterns and
grade structures to maximize school segregation and pur
posefully incorporate precise residential patterns of segre
gation in schools; intact busing; in-school segregation;
racially selective placement of optional attendance areas
9 In 1960-61, of 251 Detroit regular (K-12) public schools, 171
had student enrollments 90% or more one race (71 black, 100
white) ; 61% of the system’s 126,278 black students were assigned
to the virtually all-black schools. In 1970-71 (the school year in
progress when the trial on the merits began), of 282 Detroit regular
public schools, 202 had student enrollments 90% or more one race
(69 white, 133 black) ; 74.9% of the 177,079 black students were
assigned to the virtually all-black schools. (Va 31-33).
10 Brown v. Board of Education, 347 U.S. 483 (1954).
11 Keyes v. School Dist. No. 1 , Denver, 413 U.S. 129, 37 L.Ed.2d
543 (1973).
17
or dual overlapping zones; discriminatory allocation of
faculty to mirror pupil racial composition of schools;12
and persistent and intentional segregative construction
(both of new schools and of enlargements to old ones)
and site location practices. (See, e.g., Ia 133-171; Ila 1-8;
Ila 82-111; Ila 111-159; Ila 160-312; Ilia 1-18; Ilia 18-53;
Ilia 53-59; Ilia 60-72; Ilia 72-73; Ilia 75-81; Ilia 97-153;
Ilia 158-206; Ilia 216-230; Ilia 237-244; I lia 244-246;
Ya 24-31; Va 31-34; Ya 35-41; Ya 42; Ya 43; Ya 44-47;
Va 48-68; Va 102-104; Ya 181-197; P.X. 63; P.X. 109 A-Q;
12 The District Court found, however, that by 1970— and in large
measure at the behest of the defendant Detroit Federation of
Teachers and then Detroit Board’s Assistant Superintendent Mc-
Cuteheon in charge of personnel— the Detroit public schools were
engaged in a significant program designed to overcome past racial
faculty assignment patterns, and that because this program showed
promise of achieving its goals within Detroit, injunctive relief was
not required as to faculty allocation in the city schools.. (J. 28a-
J. 32a). Such findings, however, with respect to faculty only dem
onstrate more clearly the high burden of proof imposed by the
District Court on plaintiffs at trial; for it was uncontroverted that
white Detroit areas were openly hostile to black faculty members
prior to 1960 and the Detroit Board accommodated this racial
hostility by refusing to assign black teachers into those predom
inantly white schools until the whites were willing (Tr. 45-49, Ilia
59; E. 2548-2549). As a result few black teachers and administra
tors were assigned to serve white student bodies and black teachers
and administrators were assigned generally to black schools. Staff
racial composition mirrored pupil racial composition, thereby fur
ther identifying schools as “ black” or “white” during critical pe
riods of the record (e.g., P.X. 100 A -J; P.X. 165 A-C, P.X. 154
A-C J.X. F F F F ; P.X. 166, P.X. 3 at pp. 73-79, Va 48-68). More
over, the availability of positions to whites in virtually all white
suburban schools coupled with an acute shortage in the supply of
teachers made recruitment and assignment of white teachers to
black schools difficult (e.g., E. 4471-4475; J. 31a); this further
exacerbated the racial pattern in the allocation of faculty. Although
this racial pattern in the allocation of faculty ameliorated some
what after 1965, the pattern still persisted at the time of trial so
that pupil racial composition of schools still could be determined
solely by reference to the faculty racial composition. As admitted
by then Deputy Superintendent Johnson, “ the pattern . . . is the
result of discrimination.” (I lia 223). (E.g., la 135-140; Va 44-45;
P.X. 100; P.X. 165, P.X. 154; Ila 276-278; D.X. FFF).
18
P.X. 16 A-D; P.X. 136 A-C; P.X. 137 A-C; P.X. 147-149;
P.X. 153-153B; P.X. 154 A-C; J.X. F F F F ; P.X. 173.)
All of these de jure devices operated in lockstep with the
extensive residential segregation, itself the product of
public and private racial discrimination, to further ex
acerbate the school segregation and result in the inten
tional confinement of the growing numbers of Detroit black
children to an expanding core of virtually all-black schools
immediately surrounded by virtually all-white schools.
(See, e.g., Ia 156-164; IXa 9-19; Ila 19-22; Ila 22, Ila 45-51;
Ha 23-28; Ila 28-45; Ila 51-60; Ila 60-64; Ila 64-69; Ila
69-72; Ila 176-273, 296-307; Ilia 60-72; Ilia 73-74; I lia 64,
66-70; Ilia 206; Ya 22; Ya 24-30; Ya 69-86, P.X. 183 A-G;
Ya 21-23; Ya 5-11; P.X. 38; P.X. 48A; P.X. 57; P.X. 60;
P.X. 16 A-D; P.X. 109 A-Q; P.X. 184; Ya 89-90; P.X. 181;
P.X. 182; P.X. 189; Ex. P.M. 13-15; Ex. M. 5 (Exhibit B ) ;
Ex. M. 14).
Confronted by the evidence, the District Court concluded,
in its September 27, 1971 opinion, 338 F. Supp. 582 (17a-
39a), that although certain public and private non-school
forces of discrimination had also contributed to the cre
ation of Detroit’s highly segregated school system, per
vasive and purposeful discriminatory action at the state
level and by Detroit defendants, relating directly to the
public schools, was a significant causal factor.13 Therefore,
13 The District Court, like this Court in Swann and Keyes, did
consider the interaction between residential and school segregation.
The residential segregation throughout the metropolitan area was
shown by the evidence, and found by the District Court, to be,
“ in the main, the result of past and present practices and customs
of racial discrimination, both public and private . . .” and not the
result of the racially unrestricted choice of black citizens and eco
nomic factors (23a). The segregative actions of state and Detroit
school authorities (especially with respect to school construction)
and the environment for segregation fostered by the dual system
of schooling, i.e., the expanding black core immediately surrounded
by the white ring, was also found to interact with and to contribute
19
the District Court held, the Fourteenth Amendment re
quired “root and branch” elimination of the unlawful school
segregation and its effects.
3. Remedial Proceedings
a. The Practicalities of the Local Situation
The evidence at the violation hearing focused primarily
on the Detroit public schools, where over 132,000 black
children were assigned to a core of virtually all-black
schools, identified as black by official state action. How
ever, in exploring how these black schools were created
and maintained, and how their resulting state-imposed
racial identity could be effectively removed, the proof
of the pattern of state action affecting school segregation— 14
substantially to this residential segregation throughout the Detroit
area. This, in turn, further exacerbated school segregation. (J. 23a-
24a, 26a-28a, 35a; J. 77a-78a, 87a-88a, 93a-94a. See also J. 144a-
157a, 159a, 172a). Compare the similar relationship previously
noted by this Court in Swann, 402 U.S. at 20-22, and Keyes,
37 L.Ed.2d at 559-560, 565. As stated by the District Court “ on
the record there can be no other finding.” (J. 23a). Thus unlike
Bradley v. School Bd. of the City of Richmond, 462 F.2d 1058,
1066 (4th Cir. 1972), and contrary to petitioners’ assertions (e.g.,
Grosse Pointe Brief 38), the District Court did take evidence and
make findings, supported by overwhelming proof, as to the
racially discriminatory causes of residential segregation in the
metropolitan area and the important contribution to that condi
tion of the de jure actions of school authorities. (In Argument,
infra, pp. 43-49, we will analyze the factual and legal implications
of these findings.)
14 As a dramatic example, consider the Higginbothom community
in Detroit and the adjacent Carver School District. The Higgin
bothom community had been built up as a black “pocket” by tem
porary World War II housing, designated for black occupancy, on
the outskirts of Detroit and extended beyond the city limits into
Oakland County and the old, almost all-black Carver School Dis
trict. The boundaries for the newly constructed black Higginbothom
school in Detroit were created and maintained to coincide with the
precise perimeters of the black “pocket” in Detroit, which perim
eters were also marked both by an actual cement wall built by the
white neighbors and the boundaries of the adjacent all white schools
20
just as did the acts themselves14 15—extended beyond the
geographical limits of Detroit.16 The evidence compelled
viewing the Detroit Public Schools as part of a State sys
tem of public education, not a detached island of un-
remediable segregation.
imposed by school authorities to cordon off the area. To the im
mediate North of the Higginbothom school, the black “ pocket” ex
tending outside Detroit was contained within the small, all-black
Carver School District. That black district lacked high school
facilities. The state and Detroit school defendants accommodated
these black suburban high school pupils for years, from at least
1948 through 1960, by busing them past or away from several closer
white schools, across school district lines, to a virtually all
black high school in the inner core of the city. These black stu
dents were not housed in suburban high schools but were bused
across school district lines, for the purpose of segregation, thereby
further marking the neighboring suburban schools as “white” and
the inner schools as “black.” (The Carver School District was
finally split in two and merged into the Ferndale and Oak Park
School Districts. Yet, at the elementary level, all the suburban stu
dents in this black “pocket” continued to attend two virtually
all-black suburban schools. The Court of Appeals in another action
upheld the HEW finding and withholding of federal funds with
respect to such vestige of state-imposed segregation, see School
Dist. of Ferndale v. HEW , No. 72-1512 (6th Cir., March 1,
1973). (J. 26a; J. 80a, 96a; J. 137a-139a, 152a.) (See also, e.g,
la 157, 162; I.R. 163; P.X. 78a; P.X. 19 p. 71; 11a 109-110; 11a
131; I lia 206; Ya 181-182; Va 186; P.X. 184; Va 89-90.) That the
state defendants are ultimately responsible for this patent act of
segregation from their general supervisory powers is clear (e.g., J.
36a-38a). Their particular responsibility for this violation and ac
quiescence in it is equally clear: they have supervisory responsi
bility for regulation of all aspects of school busing, including
the routing buses. (J. 36a; M.C.L.A. 388.1010(c)).
15 This evidence of effective discrimination along or beyond the
DSD borders ran only against the State defendants—the chief
state school officer, the State Board of Education which is charged
with general supervision of public education, the chief state legal
officer and the State’s chief executive— and Detroit defendants and
not against any suburban school district, its conduct, or the estab
lishment of its boundaries, as specifically noted by the District
Court. (J. 60a). The evidence presented related primarily to (1)
the State’s policies and practices effecting segregation within and
of the Detroit public schools vis-a-vis its suburban neighbors with
respect to Act 48, school construction, merger of districts, pupil
21
The proof showed that in practical terms there are now,
and for years have been, two sets of schools in the Detroit
area: one virtually all-black, expanding core in the DSD,
surrounded by another virtually all-white ring beginning
in some areas at the border of the DSD but everywhere
extending throughout the suburban area beyond the geo
graphical limits of the DSD. By 1970 the black core in the
DSD contained some 132,700 black pupils in 133 schools
more than 90% black, made racially identifiable by per
vasive discriminatory actions and practices of state and
Detroit defendants. In stark contrast in the school dis
tricts in the metropolitan area surrounding* 16 the Detroit
public schools, between 1950 and 1969 over 400,000 new
pupil spaces were constructed in school districts now serv
ing less than 2% black student bodies (Exs. P. M. 14; P. M.
15). By 1970 these suburban areas17 assigned a student
assignment across school district boundaries for the purpose of
segregation, faculty allocation, and disparity of bonding authority
and transportation funding and (2) to- actions by Detroit and
state defendants which not only contained black youngsters in
designated Detroit schools but which had the reciprocal effect of
further earmarking the surrounding ring of schools—in Detroit
and the suburbs—as white. (J. 26a, 28a, 38a; J. 77a-78a, 87a-88a,
93a-94a; J. 144a-157a). Contrary to the Petitioners’ assertions,
the evidence of state law and practice showed that school districts
in thfe Detroit area were not separate, identifiable, and distinct,
except with respect to race. (See, e.g., J. 23a-24a;J. 36a-38a; J.
50a; J. 77a-81a; J. 87a-88a; J. 151a-157a; 165a-173a).
16 Hamtramck (28.7% black) and Highland Park (85.1% black)
are surrounded by the Detroit School District.
17 There are also small, long-established concentrations of black
population outside Detroit which are located in Ecorse, River
Rouge, Inkster, Westland, the old Carver School District (Ferndale
and Oak Park), and Pontiac. As within the DSD, the black and
white pupils within these districts also remained substantially seg
regated in 1970-71. (E.g., P.X. 181, 182, 184; Ex. P. M. 12; Va. 111-
115). Such a systematically segregated result is entirely consistent
with the history of de jure segregation throughout the State. Con
trary to Petitioners’ assertions that the State has enjoyed a long
“unitary” history, this case is not an isolated exception; at least the
22
population of 625,746 pupils, 620,272 (99.13%) of whom
were white, to virtually all-white schools. Within the con
text of the segregatory housing market and environment
for segregation fostered by the dual system of schooling,
this massive suburban school construction contributed to
the migration of whites from the city to, and the location
of whites immigrating to the Detroit area in, the suburbs.
In turn, this had a reciprocal effect on the racial composi
tion of the Detroit Public Schools which “has been sub
stantial” . (J. 78a). Throughout the metropolitan area,
faculties mirrored the racial composition of the student
bodies of schools, thereby further earmarking them as
“white” or “black” schools. For example, within Detroit,
41.8% of the teachers were black; in the suburban areas
above with less than 1 % black pupils, only 0.4% of the
faculty were black. (Exs. P.M. 13; P.M. 18).
Finally, the evidence indicated that absent appropriate
judicial intervention, this unmistakable pattern of school
segregation would continue: In the environment for
segregation created by the long history of de jure school
segregation and the interrelated, pervasive and enforced
residential segregation, the state-imposed core of black
school population within the DSD would continue to expand
six other school districts in the State subjected to judicial scru
tiny have been found guilty of pervasive racial discrimination
with respect to the assignment of pupils or staff or both. Davis v.
Sch. Dist. of City of Pontiac, 309 F.Supp. 734 (E.D. Mich), aff’d,
443 F.2d 573 (6th Cir. 1971) ; Oliver v. Kalamazoo, 346 F.Supp.
766 (W.D. Mich) aff’d, 418 F.2d 635 (6th Cir. 1971), on remand
------ F.Supp. ------ (K-98-71, Oct. 4, 1973), NAAOP and Taylor
v. Lansing,------ F .Supp.-------- (W.D. Mich. 1973); School Dist. of
Ferndale v. HEW , No. 72-1512 (6th Cir., March 1, 1973);
Berry v. School Dist. of the City of Benton Harlor, (C.A.
No. 9, W.D. Mich. Feb. 3, 1970) (oral opinion) ■ Higgins v. Grand
Rapids Bd. of Ed., ------ F.Supp. ------ (C.A. 6386) (W.D. Mich.
1973). Thus the State’s express promises of a racially non-dis-
eriminatory system of public schooling have long been denied to
the vast majority of black children throughout the State.
23
right up to the borders of the DSD and within a relatively
short time all of Detroit’s schools were likely to have nearly
all-black student bodies, all still surrounded by a ring of
virtually all-white schools.18 19 20 (J. 20a; J. 23a-24a; 54-55a).
b. The District Court’s Guidance by Settled Equitable
Principles and Its Order to Submit Plans.
It was in the light of this factual background, then, that
the District Court set about the difficult task of devising an
effective remedy for the extensive constitutional violation
and resulting massive school segregation which it had
found. Prom the beginning of its search for an appropriate
remedy to its final opinion on remedy, the District Court
was guided by the prior rulings of this Court and by set
tled equitable principles in “grappling with the flinty, in
tractable realities” of eliminating all vestiges of state-
imposed segregation. (J. 61a quoting Swann v. Charlotte-
Mecklenburg Bd. of Edna.. 402 US 1, 6). In its first col
loquy with counsel concerning remedy, on October 5, 1971,
the district judge made clear that Davis19 and Brown IP 0
established the contours of the future proceedings in the
case:
I want to make it plain I have no preconceived notions
about the solutions or remedies which will be required
18 Among the other practicalities of the situation confronted by
the District Court at this point, then, were the boundaries of the
DSD and the existence of other school districts, both local and
intermediate. The District Court’s determinations with respect
thereto are so much the primary subject of this Court’s review
that they will be set forth and analyzed in Argument, infra. (See
also Nature of Review, supra at 5-8).
19 Davis v. Board of School Comm’rs of Mobile, 402 US at 37
(1971).
20 Brown v. Board of Education, 349 US at 299 (1955).
24
here. Of course, the primary and basic and funda
mental responsibility is that of the school authorities.
As Chief Justice Burger said in the recent case of
Davis v. Board of School Commissioners:
—school authorities should make every effort to
achieve the greatest possible degree of actual de
segregation, taking into account the practicalities
of the situation.
Because these cases arise under different local condi
tions and involve a variety of local problems their
remedies likewise will require attention to the specific
case. It is for that reason that the Court has repeatedly
said, the Supreme Court, that each case must be judged
by itself in its own peculiar facts. (J. 42a).21
21 Petitioners’ use of the District Court’s remark at this same
colloquy with respect to “ social goals” and “ law as a lever” are
taken wholly out of context. (E.g., State Brief 77-78.) Where peti
tioners thereby imply that the District Court was motivated by
a “ social goal” to accomplish “ racial balance” and “ majority white
schools,” the District Court’s remarks were only a cautious state
ment of constitutional principles, defendants’ responsibility initially
to come forward with a plan promptly, and the practical prob
lems which have been experienced in implementing constitution
ally mandated desegregation in the face of white community
hostility. As this Court well knows, the historic course of righting
the constitutional wrong of state-imposed school segregation has
not been easy and has been made more difficult by the recalcitrance
of school authorities and white communities over time. See
Swann, 402 U.S. at 13. Read in context then, the District
Court’s remarks about the “social” difficulties inherent in such
judicial intervention were an admonition to plaintiffs that the
Alexander command of “ now” be understood in light of the prac
tical difficulties of devising and implementing a plan to provide
complete relief. The only conceivable error in such statement is
its suggestion that delay beyond the limits mandated by Alexander
and Carter might be required in view of the practicalities of the
local situation. Alexander v. Holmes County Bd. of Educ., 396
U.S. 19 (1969) ; Carter v. West Feliciana Parish School Bd., 396
U.S. 290 (1970).
25
In its last opinion on remedy, the District Court reiterated
the constitutional basis for its action.
The task before this court, therefore, is now, and, since
September 27, 1971, has always been, how to desegre
gate the Detroit Public Schools.
[T]he primary objective before us was [and is] to
develop and implement a plan which attempts to
‘achieve the greatest possible degree of actual desegre
gation, taking into account the practicalities of the
situation.22 (J. 60a).
Put simply, the District Court was required to consider
what was necessary to disestablish the state-imposed black
core, now and hereafter, in the context of the nature of the
violation and the practicalities of the local situation.
Based on these equitable principles and in order to
evaluate all feasible alternative desegregation techniques,
at a pre-trial conference on October 5, 1971, and by written
order on November 5, 1971, the District Court directed that
Detroit school officials submit a plan limited to the DSD
within sixty days and also that state defendants recommend
a plan not limited to the existing boundaries of the DSD—
a “metropolitan” plan—within 120 days (J. 43a, J. 46a-
47a).23
22 In its two intervening rulings on remedy, the District Court
steadfastly applied these legal standards. (See J. 48a; J. 53a.)
Thus, throughout the remedial proceedings the District Court
sought “ to assess the effectiveness of proposed plans of desegre
gation in the light of circumstances present and the available
alternatives; and to choose the alternative or alternatives which
promise realistically to work now and hereafter to produce the
maximum actual desegregation.” (J. 50a).
23 The State and Detroit defendants sought to overturn the Dis
trict Court’s ruling on violation by appealing from its orders
requiring submission of plans; the Court of Appeals held this
procedure to be premature. 468 F.2d 902, cert, denied, 409 U.S.
844 (1972).
26
c. The Procedural Status of Suburban Intervenors.
At the same time the District Court considered again the
motion of the original intervening defendant white home-
owners group to join all 86 school districts in the Detroit
metropolitan area. (In its September 25, 1971 Ruling on
Segregation the District Court held decision on the motion
in abeyance pending submission of actual plans, of de
segregation by the parties, which might establish more
particularly the perimeters of relief and the school dis
tricts involved (J. 38a-39a).) In the pre-trial conference
on October 5, 1971 on remedial proceedings, the District
Court again indicated its desire to allow affected school dis
tricts an opportunity to be heard prior to implementation
of any final plan but was uncertain how the practical me
chanics should be handled in view of the posture of the
proceedings, the uncertainty as to which school districts
might be affected and to what degree, the number of the
potential additional litigants, and the need to remedy
the constitutional violation “with some dispatch” (J. 44a).
(As no actual plan of “metropolitan” desegregation has
ever been before the District Court, this Court simply can
not know how the District Court would have resolved the
issue. The original motion of the intervening defendants
was subsequently withdrawn, but state defendants and then
the suburban intervenors continued to press the issue).
Despite the public notoriety of this case, only 43 of the
suburban school districts chose to file motions to intervene
and then only between February 9 and 18, 1972, many
months after the words “cross-district busing” first canon-
aded around the State and several months after the District
Court had set a schedule for the filing of remedial plans
and objections thereto. (J. 43a; J. 47a; la 4-5; la 185, 189,
192, 196). On March 15, 1972, the District Court g-ranted
these motions to intervene, as well as the motion to inter
27
vene earlier filed by a group of white suburbanites also
seeking to contain any possible desegregation within the
geographic limits of the DSD. (At the same time the
District Court continued to defer ruling on the motion
to join all 86 school districts). In granting these motions,
the District Court did place certain restrictions on the inter
veners’ conduct in future proceedings in the interests both
of making judicial administration of further hearings
among the numerous parties possible and of insuring that
plaintiffs'’ right to immediate relief under Alexander would
not be further forfeited. (Ia 201.) At the first day of the
hearings on metropolitan relief the District Court made
clear, however, that these limitations would give way to
the interests of justice upon showing.24 *
d. Hearings and Decision on Plans Limited to the DSD.
In response to the District Court’s order, the Detroit
Defendants submitted two DSD “ free choice plans” neither
of which even purported to be plans of actual desegrega
tion; the Detroit Board announced that actual desegrega
tion would require approaches extending beyond the
geographical limits of the DSD. The plaintiffs, therefore,
submitted a plan of pupil reassignment limited to the DSD
borders to permit full evaluation of the available alterna
24 The District Court stated at the opening of the hearings on
metropolitan relief:
Some of the newly intervening parties have filed objections
to the conditions of intervention which I have not given full
consideration to. Presently, I believe all the Court need say
is thatthe conditions are subject to modification and change
as justice may require as the proceedings progress. (IVa 142).
Throughout the hearing the District Court modified the restrictions
to permit cross-examination by all counsel and even keep the
record open for submission of evidence on tangential issues.
(E.g., IVa 143). In Argument, infra, we will show how the Dis
trict Court did not deny to any person any procedural right se
cured by the United States Constitution.
28
tives. After hearings, from March 14 through March 21,
1972, at which suburban school district intervenors did not
appear, the District Court concluded that, in view of the
violation and its far-reaching results and the practicalities
of the local situation, a plan of desegregation limited to the
DSD would be ineffective: it would maintain the state-
imposed containment of black children to a core of pre
dominantly black schools extending right up to the borders
of the DSD, still walled off from a ring of virtually all-white
schools and would lead directly to the creation of a virtually
all-black school district immediately surrounded by virtu
ally all-white schools.26 (J. 48a et seq., J. 53a et seq., 87a-
88a). Such a “remedy” held no promise for disestablishing
the present and expanding, state-imposed core of black
schools now, even less promise hereafter.
e. The Hearings and Decision on “Metropolitan” Plans,
The hearings on “metropolitan” plans commenced on
March 28, 1972, and continued through April 14, 1972. The
state defendants, however, failed to submit any plan of
actual desegregation extending beyond the borders of the
DSD. They chose instead to submit six “plans” “without
recommendation or preference” (J. 62a) and without record
support (J. 64a). Four proposed concepts alternative to
maximum actual desegregation; a fifth described a statis
tical method of determining the number of transfers in
volved in achieving any particular racial mix; and a sixth
discussed, primarily, new governance and administrative
structures for any larger area of actual pupil desegregation
and also proposed a particular area for initial pupil de
26 The District Court rejected the Detroit Board “ free choice"
proposals as not only wholly ineffective, but also independently iMj
constitutional; in contrast the District Court found that plaintiffs’
plan, despite its constitutional ineffectiveness, would accompli
more desegregation than the Detroit Board proposals and than
currently existed in the DSD. (J. 54a-57a).
29
segregation. The state defendants filed objections to the
non-plans they themselves submitted, based upon self-serv
ing assertions of impotence. At the hearings on these
“plans” the state defendants steadfastly refused to meet
their burden to explore and develop the relative promise of
alternative “metropolitan” proposals for desegregation.
All this constituted a direct refusal by state defendants to
assist the District Court in defining even the area and
further planning necessary to develop an effective plan.
(J. 62a-64a.)26
The Detroit Board and intervening Detroit home-owners
group proposed alternative perimeters for the area nec
essary and practicable effectively to eliminate the official
segregation of the Detroit public schools. Plaintiffs there
after submitted a modification of the three perimeters
already proposed. (J. 65a.)
As a result of the state defendants’ default in failing to
submit an actual and complete desegregation plan, the
initial hearings on “metropolitan” relief were necessarily
limited primarily to consideration of the general contours
of a plan, particularly the perimeter for actual pupil de
segregation and how to proceed with further planning. (J.
61a-64a..) Six months after the finding of violation and
order to defendant school authorities to submit actual
plans, therefore, the District Court was limited to under
taking to determine a feasible method and tentative guide
lines to permit preparation of such an actual plan of de
segregation at last to begin in earnest. Cf. Swann, 402
TJ.S. at 24-25. After hearing, and the parties’ submission
of proposed findings of fact and conclusions of law, the
. The newly intervening suburban defendants rather than as
sisting the District Court in considering the alternatives available
and suggesting how future planning should proceed chose instead
to press their views that separate schools were preferable. (J. 64a).
30
District Court issued an order, July 14, 1972, (1) setting
the contours for actual desegregation planning pending
hearing on a completed model,27 (2) establishing a panel
27 The District Court specifically rejected the perimeter pro
posed by state defendants because on the record evidence its only
justification was “ a desire to achieve an arbitrary racial ratio.”
(J. 66a). Such finding is just one of the many examples which
refute petitioners’ charge that the District Judge was motivated
by a non-judicial social desire to achieve “racial balance” and
“majority white schools.” Other examples include the District
Court’s (1) findings that Detroit defendants’ persistent refusal to
assign white children to predominantly black schools and pur
ported attempts at “ one-way” desegregation (transfers of only
blacks to white schools) were among the constitutional violations
(J. 26a) ; (2) findings that the plan of actual desegregation
limited to the DSD “ would accomplish more desegregation than
now obtains in the system” . (J. 54a) ; and (3) rejection— on the
basis of the precise commands of Brown, Brunson and Swann—
of petitioners’ assertion of just such “social policy” considerations
in the district court as a justification for limiting desegregation
(J. 61a, 89a). The wonder, then, is that petitioners cite Judge
Sobeloff’s compelling concurring opinion in Brunson v. Bd. of
Trustees, 429 F.2d 820 (4th Cir. 1970), in support of their argu
ment that the District Judge was a racist motivated by a belief
in black inferiority to order desegregation beyond the DSD to
achieve all “majority white” schools. No individual could have
more strongly agreed with Judge Sobeloff’s interpretation of
Brown’s requirement to disestablish completely the state-imposed
black core, and only that, than Judge Roth:
Insofar as pupil assignments are concerned, the system of
public schooling in every state must be operated in a racially
non-discriminatory, unified fashion; until that objective is
met, the very system of public schooling constitutes an invidi
ous racial classification. (J. 86a).
From the initial ruling on September 27, 1971, to this day,
the basis of the proceedings has been and remains the viola
tion: de jure school segregation. Since Brown v. Board of
Education the Supreme Court has consistently held that the
remedy for such illegal segregation is desegregation. The
racial history of this country is writ large by constitutional
adjudication from Bred Scott v. Sandford to Plessy v. Fer
guson to Brown. The message in Brown was simple: The
Fourteenth Amendment was to be applied full force in pub
lic schooling. The Court held that “state-imposed” school seg
regation immeasurably taints the education received by all
children in the public schools; perpetuates racial discrimina-
31
of experts to develop a plan for pupil desegregation, (2)
directing state defendants to consider administrative prac
ticalities associated with any eventual desegregation order,
and (4) setting a schedule for further proceedings to con
sider any plans and recommendations made by the court-
appointed panel and the state defendants and to permit
the parties an opportunity to present objections and alter
natives.* 28 (J. 97a-105a.)
tion and a history of public action attaching a badge of
inferiority to the black race in a public forum which impor
tantly shapes the minds and hearts of succeeding generations
of our young people; and amounts to an invidious racial clas
sification. Since Brown the Supreme Court has consistently,
and with increasing force, held that the remedy upon finding
de jure segregation is prompt and maximum actual desegrega
tion of the public schools by all reasonable, feasible, and prac
ticable means available. This court finds that there is nothing
in the law, wisdom, or facts, and the particular circumstances
and arguments, presented in this case which suggest anything
except the affirmance of these principles in both fact and law.
The task before this court, therefore, is now, and, since Sep
tember 27, 1971, has always been, how to desegregate the
Detroit public schools. . . . (J. 60-61a)
Having been told by the lower courts that naked “social policy”
concerns yield to constitutional commands and may not limit
desegregation, petitioners dare to argue in this Court that the
lower courts were motivated by racist “social goals” rather than
the commands o f the Constitution.
28 The perimeter approved by the District Court for further
planning for actual desegregation was premised on several criteria
including reasonable time and distance limitations, eliminating the
racial identifiability of the state-imposed black core, the actual
community of interest in the Detroit area, existing school district
boundaries, and long range stability (J. 62a-70a). The District
Court was able to reduce the perimeter from some of the more
expansive proposals of defendants by requiring state defendants
to examine and limit new classroom construction outside the de
segregation area which might affect the stability of the ultimate
plan. (J. 72a). Cf. Kelley v. Metropolitan County Bd. of Ed.,
Civ. No. 2094 (M.D. Tenn., June 28, 1971), a fd , 463 F.2d 732
(6th Cir.), cert, denied, 409 U.S. 1001 (1972). Finally, the Dis
trict Court ordered that further planning proceed on a division
°f the desegregation area into general clusters of schools, eaeh
32
Thereafter, upon recommendation of the court-appointed
panel and after hearing, the District Court on July 11, 1972
ordered the purchase of 295 buses, necessary to implement
any of the “metropolitan” or “Detroit only” proposals then
before the Court for the actual desegregation of the Detroit
Public Schools (J. 106-107a). Upon the representation by
the State defendants that they would not disburse funds
for these buses, the District Court at the same time joined
the State Treasurer as a defendant pursuant to Rules 19
and 21, Fed. R. Civ. P. (la 263-264). Compare Griffin v.
County School Board of Prince Edward County, 377 U.S.
218 (1964).
4. Appellate Proceedings
Following emergency appeals from these rulings, the
Court of Appeals stayed the order directing purchase of
roughly approximating the racial composition of the desegregation
area (J. 70a-81a). Within each cluster, then, planning for the
actual disestablishment of the state-imposed core of black schools
could continue almost independently. This would make planning
for each smaller cluster considerably easier than in many plans
previously drawn throughout the country. The Court also in
structed that further planning proceed on the basis of attempting
within clusters to avoid a pattern of schools of substantially dis
proportionate racial composition, subject to reasonable time and
distance limitations as they actually developed (J. 101a-102a).
Such planning order is precisely the type of “starting point” au
thorized by Swann, 402 U.S. at 25, to permit actual development
of a pupil assignment plan. And the District Court invited peti
tioners to submit alternatives and objections, or to argue that
particular assignments were not necessary to the elimination of
the state-imposed black core now and hereafter, upon submission
of an actual plan. (J. 105a). At that point petitioners will have
the opportunity to show that particular pupil assignments pro
posed were unnecessary and unrelated to the disestablishment of
the state-imposed core of black schools. See Swann, 402 U.S.
at 26. Thus state petitioners’ argument (State Brief, 74-77)
that such unnecessary pupil assignments were ordered by the
District Court is, to say the least, premature and wholly unfair
to the District Court which has not yet even had a.n opportunity
to rule on the issue.
33
transportation equipment pending entry by the District
Court of a final desegregation order or until certification
by the District Court of an appealable question as pro
vided by 28 U.S.C. §1292(b). (See J. 113a). On July 19,
1972 the District Court certified his prior rulings under
28 U.S.C. 1292(b) and made a determination of finality
under Rule 54(b), Fed. R. Civ. P. (la 265-266). The Court
of Appeals immediately granted the interlocutory appeal
on an emergency basis and stayed all further proceedings
in the District Court, except planning, pending appeal.
(113a).29
Subsequently, pending the appeals, the panel and state
defendants filed reports on their planning. (Ia 268, la 271,
la 288). Of particular note, the State defendants’ report
on administration of any eventual desegregation plan
recommended that, at least on an interim basis, existing
school districts be maintained with pupil desegregation to
be accomplished by contract between school districts, as
already authorized under state law.30 (Ia 268-270). State
defendants also recommended that any eventual alteration
29 Immediately after the District Court’s Ruling on Desegrega
tion Area and Development of Plan, three other suburban school
districts chose to -apply to the Court of Appeals for writs of man
damus or prohibition against Judge Roth. The Court of Appeals
denied the applications without prejudice to the school districts’
right to intervene on July 17, 1972 and August 7, 1972. On
February 27, 1973, this Court denied review of that decision
without prejudice to the right of the School Districts to file
application to intervene in the present action. (I lia ). These three
suburban school districts chose not to avail themselves of the
opportunity to intervene in the District Court or in the Court
of Appeals. The remaining suburban school districts chose just
to sit tight. (See Argument, infra pp. 61-78, for a discussion of
how none of these districts were denied any procedural rights
guaranteed to them by the United States Constitution.)
30 The District Court had already approved use of such an ap
proach in its Findings of Fact and Conclusions of Law in Support
of Ruling on Desegregation Area and Development of a Plan
34
of the school districts’ boundaries and reorganization of
state, intermediate and local school authority agencies and
functions should he left to the legislature and the people.31
(Ia 278, et. seq.).
On June 12, 1973, after briefs, hearing and decision by
a panel of judges, and grant of petitioners’ motions for
rehearing en banc, the Court of Appeals sitting en banc
affirmed the District Court’s findings of a pervasive vio
lation32 and the inadequacy of relief limited to the DSD,
(J. 80a-81a). Such utilization of state law to provide or assist in
providing a remedy for violation of civil rights is authorized by
42 U.S.C. §1988, which makes “ State law responsive to the need
whenever a federal right is impaired.” Sullivan v. Little Hunting
Park, 396 U.S. 229, 240 (1969).
31 On appeal, plaintiffs supported these recommendations as a
workable method of proceeding to accomplish complete relief from
the constitutional violation with as little intrusion as possible into
the State’s existing internal structures for administering public
education.
82 Perhaps the most glaring non-sequitur in all of petitioners’
briefs is the extensive quotation of the Detroit Board’s brief, as
appellant in the Court of Appeals, as some kind of authority for
the proposition that the violations found and of record in this case
were trifling. (Grosse Pointe Brief 16-18). The Detroit Board vig
orously defended this position with argument and evidence in the
District Court and then played out this approach in its appeal and
presentation to the Court of Appeals. Based on the entire and
extensive record evidence, however, this proposition was first
squarely rejected by the District Court, which found that the
violations were pervasive, purposeful and substantially contributed
to the existing conditions of segregation. (J. 23a-33a). (Indeed at
trial the Detroit Board required plaintiffs to cross every “ t” and
dot every “ i” ; but when all the evidence was in, plaintiffs had
spelled-out, beyond peradventure, “state-imposed segregation.” )
On appeal, after carefully reviewing the evidence, the Court of
Appeals, en banc, affirmed the District Court’s findings that the
de jure actions of the State of Michigan and Detroit defendants
were pervasive, purposeful and causally related to the imposition
of massive school segregation on plaintiff black children from the
beginning of the record evidence to date. (J. 157a). Compared to
the careful judicial considerations of the extensive record evidence
and express rulings of the District Court and Court of Appeals
35
affirmed the propriety of considering relief extending be
yond the geographic borders of the DSD, but vacated for
procedural reasons the Ruling on Desegregation Area
and Development of a Plan (except for authorizing the
court-appointed panel to proceed with its studies). (J.a
110a et. seq.). The Court of Appeals remanded with guide
lines for accomplishing relief but expressed no view on
the vacated remedial rulings with respect to the tentative
perimeter for a desegregation area and all other partic
ulars. (J. 178a). Thus any semblance of even the tenta
tive outlines of a remedial plan were thereby wholly
eliminated. In remanding, however, the Court of Appeals
did (1) adopt the parties’ suggestion to give the legisla
ture the opportunity to act prior to any restructuring
or alteration of existing school districts and school dis
trict lines; (2) approve the principle that desegregation
extending beyond the geographic limits of the Detroit
School District was required to remedy, now and here
after, the unconstitutional school segregation and its
effects disclosed by the record, taking into account all
the practicalities of the local situation; and (3) hold that
any suburban school district to be affected by any plan must
be given an opportunity to be heard prior to implementa
tion.
On review, therefore, there is simply no plan of desegre
gation before this Court.33 The only substantive issue is
whether the boundaries of the DSD can be crossed at all
m this case, we respectfully suggest that the petitioners’ citation
ot a contrary argument in a brief of the appellant Detroit Board
is entitled to little weight.
23 About all̂ that is clear is that if the decision of the Court of
Appeals is affirmed any eventual desegregation plan will utilize,
at .east on an interim basis, existing school district entities and
transfers accomplished by contract unless the legislature chooses
36
in any fashion to remedy the violation, taking into account
the entire local situation found, in the sound exercise of the
District Court’s equitable discretion.* 34
State and suburban school district defendants petitioned
this Court for Writs of Certiorari to review the en banc
decision of the Court of Appeals with respect to (1) the
to establish a new and different administrative framework for
relief. The difficulty with this Court’s review of the historic, sub
stantive constitutional issue presented in this interlocutory stage
of proceedings is apparent. See Memorandum in Opposition to
Petitions for Writs of Certiorari of Respondents Ronald Bradley
et al., passim. We continue to adhere to the views set forth in that
Memorandum and respectfully suggest that certiorari to review
this case was improvidently granted at this juncture.
34 Thus this ease presents no issues of “massive busing” , for
“walk-in” desegregation is possible across the borders of the DSD
between all-black Detroit schools and contiguous, all-white suburban
schools. The issue is whether even that “walk-in” desegregation is
foreclosed by the happenstance of a state-created border between
subordinate school districts which petitioners now urge should
stand both as a barrier to disestablishment of the state-created
black core and as the ultimate protection for the reciprocal all-
white ring. On the proof of record in this case, there is not the
slightest shadow of a doubt that at least these “walk-in schools”
would be ordered to desegregate if they were not separated by a
school district line. See Keyes v. School District No. 1, 37 L.Ed.
2d 548, 572-573, 581 (separate opinion of Powell, J.)
We also note, however, that petitioners’ statements about busing
to accomplish desegregation misrepresent the facts of record. Even
assuming arguendo that the District Court’s vacated Ruling on
Desegregation Area were to be fully implemented, with respect to
transportation it would be supported by the following factors:
(1) this case does not involve turning a non-transportation sys
tem into a transportation system; (2) 42% to 52% of the pupils in
suburban districts which receive state reimbursement are now
bused to school (Ex. M4, pp. 3134) and 35% to 40% of all students
are bused to school in the state (Ya 206) ; (3) these figures com
pare with the desegregation panel’s estimate that ultimatly 37%
of the pupils in the “ desegregation area” will require transporta
tion; (4) school bus transportation is a much safer and more con
venient means of getting children to school, and on time, than
either car or walking, and this is especially true for young chil
dren (Ya 213-214; IVa 15; Hearings re Detroit-Only Plans Tr,
37
so-called “ state” violation; (2) any desegregation in this
case not limited to the borders of the Detroit School Dis
trict, and (3) the failure to join all suburban school dis
tricts which might be affected by any remedial plan at
the outset of the litigation. This Court granted certiorari
so to review the case on November 19, 1973.
5. Proceedings on Remand
Pursuant to the instructions of the Court of Appeals,
plaintiffs filed an amended complaint to conform to the
evidence and moved to add all school districts, their boards
and executive officers, who might conceivably be affected
by any plan in any fashion. (Ia 291). The District Court
ordered these parties added pursuant to Rules 19 and 21,
F. R. Civ. P. (Ia 300-302). Many of the defendants joined,
as well as those already parties to this action, have filed
answers. In addition the defendant Attorney General
formally transmitted the en banc opinion of the Court of
333-334) ; (5) over 300,000 children in the tri-county area are
now bused to school (Ya 116-122), about the same number who
will require transportation to accomplish the desegregation under
the proposal (Metro Hearings Tr. 452, 454, 694, 697, 744-45); (6)
the maximum one-way transportation time for any student would
be limited to approximately 40 minutes for full-time students
(J.92a n .ll; J.67a-70a) and (7) any increases in the total num
bers of students transported and in total costs of transportation
will be minimal. (J.72a-73a; e.g., Va 207 et seq. and Exhibits to
deposition; Hearings re Detroit-Only Plans Tr. 346, 417) These
factors are all well within the limits of common practice in the
btate and used by other District Courts, and approved by this
court, to accomplish desegregation. There was no showing that
such court-ordered student transportation was in any way a dis
ruptive element in education, especially at the elementary level,
based on this uneontroverted evidence, the District Court found
that such transportation will not impose “any undue transporta-
tion burden on the children or on the state’s system of public
schooling. The time or distance children need be transported to
desegregate schools in the area will impose no risk to the cMl-
oren s health and will not significantly impinge on the educational
Process,” (J.69a-70a;, See also J.66a-70a, 72a-75a).
38
Appeals to the Legislature for its consideration and
called particular attention to its admonition that the Leg
islature be given an opportunity to act to remedy the
constitutional violation and all its effects found. Pro
ceedings are therefore under way below to address the
many important issues left unresolved at this juncture
in the case. See Memorandum in Opposition to Petitions
for Writs of Certiorari.
Thus this Court’s review comes in the middle of the trial
proceedings and is limited to the narrow issue finally
decided below. More than two years after the declaration
of a massive, pervasive and generation-long violation of
plaintiffs’ constitutional rights to attend schools entirely
free from state-imposed segregation and its effects they
yet attend upon schools with that indelible taint. For
plaintiffs the complete and effective disestablishment of
the state-imposed core of black schools for all time remains
only a constitutional promise.
Summary o f Argument
In the Detroit, Michigan area almost all black children
and some white children attend schools in Detroit; most
white children and almost no black children attend schools
in the adjacent suburban area.
The District Court, in findings affirmed without qualifi
cation by the Court of Appeals in a panel and thereafter
en banc, concluded that Michigan and Detroit, acting
through their respective school authorities and other pub
lic bodies, had for about two decades deliberately segre
gated white from black children in Detroit’s schools and,
moreover, had successfully undertaken to confine black
children to a nucleus of black schools surrounded by a
reciprocal ring of white schools in Detroit and the suburbs,
39
The courts below held, and we urge here, that the con
stitutionally required disestablishment of this substantially
dual structure would not be afforded by relief limited to
the Detroit system, and that its suburban neighbors, as
related components of a state school system subject in
practice and theory to Michigan’s absolute control, may be
required to participate in remedying the violation—absent
a showing of impractieality or strong contrary interest,
which was not forthcoming. The courts also held, and
we also urge here, that the state and local authorities’
area-wide violation—the deliberate confinement of black
children to a core of schools within a line separating* them
from reciprocally white schools—is not constitutionally dif
ferent from gerrymandering school attendance zone lines
around black neighborhoods, and that State, both as a
violator and as the ultimate guarantor of Fourteenth
Amendment rights, may be required through the state
school authorities practicably to involve its non-Detroit
units in vindicating those rights.
Finally, review is sought here of the holdings below with
respect to the adequacy of the hearings afforded poten
tially affected suburban districts. Their opportunities were
ample, especially as state authorities were defendants from
the outset. In any event, grounds for reversal are not
involved because the matter is poised below for further
hearings on remedy and any irregularity is readily curable
before anyone is affected.
40
A R G U M E N T
I.
Introduction
According to the petitioners, plaintiffs and the lower
courts have leaped without precedent from trivial segre
gation violations, whose effects were minimal or limited,
to an assertedly cherished nonconstitutional objective of
schools variously described by petitioners as racially bal
anced, majority white, or racially unidentifiable in the
context of southeastern Michigan. And this leap was made,
their argument runs, irrespective of the innocence of sub
urban districts vis-a-vis the violations and without re
gard to other valid interests that would be infringed by
the relief sought.
This Court has not held that the right of minority
children to attend practicably desegregated schools— after
a finding of illegal segregation—is secondary to the ac
knowledged general authority of the States to choose their
educational arrangements. On the contrary, we believe
that an examination of the relationship of the Fourteentli
Amendment to public education, an inquiry into the na
ture of most school segregation, and a weighing of the
interests typically served by present arrangements would
lead this Court, and others, to the conclusion that the
constitutional right of minority children must be given
precedence.35 36 Cf. Brown v. Bd. of Education, 349 U.S.
35 The States involved in Brown argued that there need not be
actual pupil desegregation— white and black children in the same
schools and classrooms together—to cure state-imposed segrega
tion, because any constitutional inequality imposed on the black
children could be cured wholly within their schools if upgraded.
In other respects, they argued, the States had the inherent right
to subdivide their systems of public schooling as they saw fit-
This Court squarely rejected those arguments in Brown and suc
ceeding cases.
41
294, 299-301 (1955); Green v. County School Board, 391
TJ.S. 430, 437-442 (1968); Swann v. Charlotte- Mecklenburg
BA. of Education, 402 TJ.S. 1, 15, 27-29 (1971); Davis v.
In this case petitioners make the same argument for similarly
limiting the relief to which plaintiffs are entitled, i.e., basically
to the schools they already attend. They argue that the Fourteenth
Amendment rights of a “person” and obligations of a “ State” are
limited to the geographic jurisdiction of the particular state
agency which is the violator of constitutional rights. Thus, argu
ing that any violation of plaintiff black children’s constitutional
rights, results solely from actions by the DSD, petitioners urge
that any such violation should be cured only by the DSD and
wholly within its geographical boundaries and that the State
otherwise has the inherent right to subdivide its system of public
schooling as it sees fit.
Assuming arguendo that petitioners are correct in placing the
blame entirely upon Michigan’s DSD agents, such contention, like
the States’ arguments in Brown, ignores the personal nature of
the rights of black children to attend State public schools which
are devoid of state-imposed racial segregation, regardless of its
form. Moreover, petitioners’ view vitiates the obligation of the
State, as a State, to provide within its, jurisdiction a racially
unified, non-discriminatory system of public schooling. Under the
United States Constitution, the State is free to choose any de
centralized framework it wishes, so long as it fulfills its Four
teenth Amendment obligations to its children. Notwithstanding
the Tenth and Eleventh Amendments, behind which petitioners
would hide, the State may not, by delegation and compartmental-
ization of authority to sub-units, avoid its Fourteenth Amendment
duties and limit the rights of persons. As held by this Court in
Ex Parte Virginia, 100 U. S. 339, 345-347 (1880), with respect
to the Reconstruction Amendments:
They were intended to be, what they really are, limitations
of the power of the States. . . .
The prohibitions of the 14th Amendment are directed to
the States, and they are to a degree restrictions of state power.
. . . It is said the selection of jurors for her courts and the
administration of her laws belong to each State; that they are
her rights. This is true in the general. But in exercising her
rights, a State cannot disregard the limitations which the
Federal Constitution has applied to her power. . . . [Ejvery
addition of power to the General Government involves a cor
responding diminution of the governmental powers of the
States. . . .
Whoever, by virtue of public position under a state govern
ment . . ., denies or takes away the equal protection of the
42
Bd. of School Commissioners, 402 U.S. 33, 36-38 (1971);
Kelley v. Metropolitan County Bd. of Education, 463 F.2d
732, 744 (6th Cir.), cert, denied, 409 U.S. 1001 (1972).
We also believe, however, that this question need not
necessarily be reached here by the Court because it was
not the gist of plaintiffs’ claim nor, more importantly, the
basis of the remedial holding of the courts below. That
holding, we submit, was based upon the record made with
respect to the nature and effects of the discriminatory
conduct of the state and Detroit authorities.* 36 37 Therefore,
although Detroit’s segregative practices and their local
effects are no longer seriously at issue,87 the state au
laws, violates the constitutional inhibition; and . . . his act
is that of the State.
(Emphasis added.) See also Cooper v. Aaron, 358 U. S. 1,
16-19 (1958).
Petitioners’ argument is as pernicious to these fundamental con
stitutional principles as that of the States rejected in Brown. For
decades plaintiff black children have been intentionally contained
within a line to black schools. In 1974, it can be no more a remedy
to continue to confine them (as petitioners would have it) within
the same schools merely because the borders of the DSD extend
no further, than it would have been in 1954 to continue to confine
black children in the same schools merely because the black schools
would be upgraded. This is so, not because of a doctrine of
respondeat superior, at least not in the common-law sense, but
because “ State support of segregated schools through any arrange
ment . . . cannot be squared with the [Fourteenth] Amendment.
. . . ” Cooper v. Aaron, 358 U. S. at 19.
36 The record, therefore, distinguishes this case from Spencer v.
Kugler, an action involving the asserted federal right of minority
children to require integration of schools regardless how they came
to be segregated. 326 F. Supp. 1235, 1238 (D.N.J. 1971), affi
per curiam, 404 U.S. 1027 (1972).
37 Although the issues presented for review in petitioners’ briefs
and petitions for writs of certiorari do not include the violations
on the part of Detroit defendants, two of petitioners argue ®
brief that such Detroit violation findings constitute error. Supreme
Court Rules 23(1) (c) and 4 0 (1 )( d ) (2), at a minimum, limit this
Court’s review of such Detroit violation findings to “plain error.'
43
thorities’ role in them and their effects upon schools in
the metropolitan area are contested; and we shall argue
from that perspective.
II.
The Nature and Scope of the School Segregation of
Black Children by the Detroit and State Authorities
Provided the Correct Framework for the Lower
Courts’ Consideration of Relief Extending Beyond the
Geographic Limits of the Detroit School District.
In 1970-71, the first school year after this action was
brought and during which it was tried, Detroit’s schools
enrolled almost 290,000 pupils, of whom about 64 percent
were black and 35 percent were white. Of 282 regular
schools, 202 were attended 90 percent or more by pupils of
one race (133 black and 69 white), and three-quarters of all
black students attended schools that were all-black or vir
tually so; about 44% of the teachers in Detroit were black.
The remaining schools in the metropolitan area, which con
sists of the balance of Wayne County and Macomb and Oak
land Counties, enrolled approximately 710,000 students, of
whom more than 98 percent were white. Indeed, omitting
such traditionally black suburban enclaves as Highland
Park, Inkster, Ecorse, and River Rouge, the white per
centage in the area’s non-Detroit schools was above ninety-
nine; and these virtually all-white suburban schools had
essentially all-white staffs.
ith respect to all factual findings, this Court’s “two-court” rule
Hints review to plain error and the application of improper legal
standards to the evidence. Keyes v. School Dist. No. 1, 37 L.Ed.2d
p 5o; n; 9 ; Graver Mfg. Co. v. Linde, 336 U.S. 271, 275 (1949);
nonstock v Group of Inst’l Investors, 335 U.S. 211, 214 (1948) •
united States v. .Johnston, 268 U.S. 220, 222 (1925) > Amer. Const,
co.. v. Jacksonville T. & K.B. Co., 148 U.S. 372, 384 (1893).
44
After some montlis of preliminary proceedings, described
above, the parties and the District Court, at the direction
of the Conrt of Appeals, undertook an inquiry into the cir
cumstances of the extreme separation of black from white
children in the schools of Detroit. The inquiry disclosed
a litany of segregative practices, increasingly familiar to
this Court, which (apparently many) Northern school au
thorities38 employ to confine Negro children to a core of
black schools separated—sometimes by a transitional buffer
but often sharply by attendance area perimeters or asserted
natural barriers—from outer-area white schools.
The devices included a longstanding pattern of segre
gative school construction throughout the metropolitan
area which operated to segregate school facilities at their
opening and thereafter to contain the black population
(J . 26a-28a, 35a); the manifest segregative intent of this
pervasive practice was augmented by the assignment of
faculties at the opening of these new school facilities to
mirror the uni-racial composition of the student bodies.
(E.g., Va 24-30) At the edges of the expanding core of
black schools, further de jure devices were invoked. Op
tional or dual overlapping zones were placed in areas
undergoing racial change “to allow white youngsters to
escape identifiably ‘black schools’.” (J . 35a). An entire
administrative district, with concomitant school attendance
boundary changes, was created to divide almost completely
the black population from the white. (J . 120a-127a). In
other instances boundaries were drawn to separate com
pletely black children from white along the perimeter of
the black core or purposefully to confine an isolated pocket
of blacks to an all-black school surrounded by all-white
schools. (J . 25a-26a, 35a). The core of black schools was 08
08 Cf. Brown I, 347 U.S. at 491 n .6: “ It is apparent that sucl
segregation has long been a nationwide problem, not merely one
of sectional concern.”
45
further delineated by the practice, generally followed, of
drawing north-south attendance zone boundary lines to
incorporate and maximize the east from west separation of
black and white residential areas. (J. 26a, 35a). And this
was supplemented by discriminatory transportation prac
tices and periodic manipulations of feeder patterns, grade
structures and attendance zones “in a manner which has
had the natural, probable and actual effect of continuing
black and white pupils in racially segregated schools.”
(J. 26a). These and allied techniques have been repeatedly
held by this Court, and the Circuits that have addressed the
issue, to be on the same constitutional footing with South
ern segregation statutes. Keyes v. School District No. 1,
Denver, Colo., 37 L.Ed.2d 548 (1973).
In addition to their scrutiny of the purposes and effects
of particular policies and practices of the school authorities,
the courts below made a searching inquiry into the rela
tionship between segregated schools and housing patterns.
This inquiry was prompted by the signs of a growing judi
cial awareness that the relationship between schools and
housing segregation is less fortuitous or one-way than the
prior “de facto segregation” rhetoric had posited (see note
3, supra), and by the repetitious insistence of defendants’
counsel that in the Sixth Circuit housing segregation justi
fies or excuses school segregation—citing Deal v. Cincinnati
Board of Education, 369 F.2d 55 (6th Cir. 1966), cert, de
nied, 389 U.S. 847 (1967).39 After that inquiry the district
court concluded:
The City of Detroit is a community generally divided
by racial lines. Residential segregation within the city
39 The fact that the district judge who tried Deal (Judge Peck)
and ̂ member of the Sixth Circuit panel which affirmed Deal
(Chief Judge Phillips) were members of the en banc majority
below has failed to deter at least one of the petitioners (Grosse
Pointe Brief at 41 n.77) from urging in this Court that Deal is
dispositive.
46
and throughout the larger metropolitan area is sub
stantial, pervasive and of long-standing. Black citizens
are located in separate and distinct areas within the
city and are not generally to be found in the suburbs.
. . . [T]his pattern of residential segregation . . . is,
in the main, the result of past and present practices
and customs of racial discrimination, both public and
private. . . .
Governmental actions and inaction at all levels, fed
eral, state and local, have combined, with those of pri
vate organizations . . ., to establish and to maintain
the pattern of residential segregation throughout the
Detroit metropolitan area. . . . While it would be unfair
to charge the present defendants with what other gov
ernmental officers or agencies have done, it can be said
that the actions or the failure to act by the responsible
school authorities, both city and state, were linked to
that of other governmental units. . . . [A] 11 of them,
including the school authorities, are, in part, respon
sible for the segregated condition which exists. And
we note that just as there is an interaction between
residential patterns and the racial composition of the
schools, so there is a corresponding effect on the resi
dential pattern by the racial composition of the schools.
(J. 23a-24a).
Pupil racial segregation in the Detroit Public School
System and the residential racial segregation resulting
primarily from public and private racial discrimination
are interdependent phenomena. (J. 35a).
Cf. Keyes, 37 L.Ed.2d at 559-60; Swann, 402 U.S. at 20-21.
These findings, that massive and longstanding govern
mental and quasi-governmental residential racial discrim-
47
illation, coupled with intentionally segregative school action,
confined black families to an expanding and identifiable
neighborhood and school core, while reciprocally creating
and shielding a white outer area, have not been challenged
much less controverted. In sum, it was and is clear in the
Detroit area, and perhaps elsewhere in the North, that gov-
ernmentally induced and supported housing segregation is
integral to school segregation in and among ostensibly
unitary systems. In the South, on the other hand, at least
until the advent of some actual desegregation following this
Court’s rulings in Green v. County School Bd., 391 U.S.
430 (1968), and companion cases, residential segregation
and devices for incorporating its effects into school systems
were generally unnecessary in the presence of unqualified
segregation statutes and such post -Brown practices as pupil
placement tests and freedom of choice.
It is in this context, we urge, that a central contention of
the petitioners—that the Detroit school authorities’ segre
gative practices were not more than minor tinkering affect
ing only a few thousands of children and a limited number
of schools—must be evaluated. This contention, we submit,
asks that this Court disregard the findings of the courts
below that the school authorities did all that needed to be
done to confine black children to schools designated for
them by augmenting and reinforcing residential segrega
tion. Moreover, the courts below tested whether this con
tainment effect was merely the by-product of neutral
educational policies. Upon inquiry the courts found, at the
racially defined perimeter, gerrymandering of school atten
dance boundaries and feeder patterns to separate white
children from black, and optional zones to serve as emer
gency exits for white stragglers. Of course, the principal
reciprocal effects of this policy were the creation and shield-
mg of white schools outside the area of quarantine and
48
the movement of immigrating whites and blacks to their
designated areas of schooling and housing—all of which
were accommodated by a massive, two-decade long program
of new construction of, and additions to, one-race schools
(e.g., J. 77a-78a, 87a), thereby further cementing the basic
dual structure and fueling the segregation environment
already fostered. Keyes, 37 L.Ed.2d at 559-61, 565. These
then were the factors constituting the “loaded gameboard”
which the lower courts properly considered, pursuant to
this Court’s direction in Swann, in probing for the contours
of appropriate relief. 402 U.S. at 23; see also 402 TJ.S. at
20-21.
It is also in this context, we believe, that petitioners’
characterization of the district judge40 (and to a lesser
extent of six of nine41 court of appeals judges) as advo
cates of racial balance, majority white schools and white
stability, reflects a fundamental misunderstanding of the
actual holding of the lower courts and the record. A care
ful reading of the record and of the lower court opinions
discloses that the citation of demographic data (J. 19a-
22a; 49a, 52a; 54a-55a; 164a, 172a-173a), rather than re
vealing sinister sociological predilections, relates to the
constitutional implications of the black core’s growing
proximity to the borders of the DSD—the school district
boundary was (and is) fast replacing attendance zone
manipulation as the vehicle of apartheid. Cf. Wright v,
40 A district judge, we note, who twice held against plaintiffs in
1970 and 1971—precipitating two appeals—and who, despite a
strong record, initially denied relief as to faculty and staff.
41 Judge Miller, who dissented below on procedural grounds
only (J. 239a-40a), has recently embraced the substantive holding
of the opinion below, writing for a panel of the court in Newburg
Area Council, Inc. v. Bd. of Education of Jefferson County and
Haycraft v. Bd. of Educ. of Louisville,------ F.2d ------- (Nos. 73-
1403-1408) (6th Cir. Dec. 28, 1973).
49
Council of City of Emporia, supra, 407 U.S. at 464-65;
United States v. Scotland Neck City Bd. of Educ., 407
U.S. 484, 491-92 (concurring opinion). The lower courts’
confrontation with the boundaries of the Detroit School
District thus became inescapable: do those school district
boundaries now serve as the fail-safe mechanism for
black containment? may those boundaries be interposed
as the latest (and, as petitioners would have it, jurisdic
tional) barrier to disestablishment of the state-imposed
core of black schools?
A second contention, advanced here and below pri
marily by the State petitioners, is that the practices of
the Detroit school authorities, while constituting state
action for jurisdictional purposes, were not state conduct
in the sense, perhaps, of histrionic interposition (com
pare, for example, Cooper v. Aaron, 358 U.S. 1 (1958))
or per se unconstitutional state legislation; and that
nothing else done or omitted by state-level authorities
could be a basis for holding them accountable in any
direct sense for the existing segregation.
The notion that state-level officials are insulated from
accountability for local constitutional misconduct by their
honest ignorance of it, especially where the issue is par
ticipation in relief as distinguished from, say, personal
liability in damages, is simply at this late date insup
portable.42 To accommodate self-imposed irresponsibility
4( Indeed, ^today’s question among desegregation plaintiffs’ coun
sel is less, why have so many cases had to be brought after Brown
*®>wby have so few been brought against state officials. Turner
]vT\Zr6n (Umnty Board ° f Education, 313 F.Supp. 380, 386
(h.I).N.C. 1970). The answer does not relate to the suability of
states by the United States but not by citizens, at least since
x Parte Young, 209 U.S. 123 (1908), or to whether state offi-
*aj sTare empowered to effect compliance. Edgar v. United States,
401 U.S. 1206 (1971) (Black, J., in Chambers).
50
on the part of public officials would defeat the affirmative
purposes of the Fourteenth Amendment; and it is familiar
law that officials who can effect relief may be added as
parties regardless of their personal innocence vis-a-vis
the original wrong. Griffin v. County School Board of
Prince Edward County, 377 U.S. 218, 234 (1964).
But petitioners’ question—whether a vicarious liability
theory will sustain involving* the State and its other edu
cation components so directly in relief—need not be
reached, or even correctly reframed.43 To argue in terms
of whether the State must participate so affirmatively to
provide effective relief—where its involvement is remote
and only conceptual—'mis-states, we submit, the record and
findings of the courts below. That record and those find
ings, which we shall review briefly here, are that the
state-level authorities were involved in fact as well as
vicariously in the relevant segregative policies and prac
tices. To be sure, all of the interlocking, mutually sup
portive segregation devices did not originate with the
state authorities, but the State did its part and for as
long as local practices effected segregation, no more was
required at the state level.
During all of the period of segregative school site selec
tion and construction the State had constitutional respon
sibility to forbid such practices and invalidate their effects,
and during* much of that period state-level authorities had
explicit state statutory school site responsibilities. Yet
segregative building continued apace (J. 26a-27a; J. 77a-
78a). A range of other state education policies disfavored
Detroit in comparison to adjacent districts. These in
43 “ State support of segregated schools through any arrange
ment, management, funds, or property cannot be squared with
the [Fourteenth] Amendment’s command that no State shall deny
to any person within its jurisdiction the equal protection of the
laws.” Cooper v. Aaron, 358 U.S. 1, 19 (1958). See Note 35 supffi
51
eluded pupil transportation reimbursement to the suburbs
but not to Detroit, which was a factor in the building
in Detroit of small, walk-in schools to serve segregated
neighborhoods, while the ready availability of bus trans
portation made new schools convenient and attractive to
the growing white population in the suburbs. (J. 27a;
78a). Detroit’s lesser school bonding authority and the
working of the state school finance system, which left
Detroit Public Schools virtually bankrupt, were found to
be other contributing factors. (J. 27a).
The petitioners stoutly dispute here whether such pol
icies were remotely racially motivated and whether they
were in fact discriminatory in any sense. The implica
tion is that the discrimination, if any, involved urban
—non-urban controversies related more to Baker v. Carr
than to Brown v. Board of Education. That explanation,
we urge respectfully, is interesting but irrelevant.44 The
gravamen of the lower courts’ holding is that when state
policies were causing Detroit to be perceived as the state
education system’s stepchild, modern schools were going
up in the suburbs with state aid and approval, while
owing to area-wide housing segregation and discrimina
tion—largely governmental itself — only white families
could respond to the message that there was a nearby
haven of strong all-white schools.
The capstone of state involvement, which the courts
below examined for itself and as probative of what under
lay other state policies whose purposes and effects -were
disputed, was the adoption of Public Act 48 of 1970,
M.C.L.A. §§388.171a et seq. (State’s Brief App. 54aa-
58aa) • Compare Keyes, 37 L.Ed.2d at 562-63. In April
11i 4MoreoTer’ in the metropolitan Detroit area, there is no such
LrDan-rural distinction; except with respect to race and schools,
e mterests are more common than competing. (J. 79a-80a).
52
of 1970, after more than a decade of segregative prac
tices presided over approvingly by the State, the Detroit
Board, after proposing reorganization across school dis
trict lines to accomplish desegregation, adopted certain
modest desegregative steps at the high school level and
proposed to subdivide the district into a number of bi-
racial decentralized units. The state legislative response
was swift and decisive: Act 48 nullified the desegregation
steps; reorganized the district into different, more racially
identifiable decentralized districts wholly within DSD; re
validated the outer boundaries of the DSD; and mandated
intentionally segregative pupil assignment criteria for the
DSD, and no other district, of “neighborhood” schools
(but supplemented by “open enrollment” ).
To the argument so labored by petitioners, that the 1
segregative role of Act 48 was limited, the courts below
reached a contrary conclusion. To the courts below, Act
48 confirmed not only the plenary nature of state au
thority, in practice as well as theory, but also state com
plicity in the long-standing constitutional violation, the
purposeful containment of black children.45 (433 F.2d
897; J. 27a-28a; J. 49a-50a; J. 151a-153a; J. 171a). 46
46 Act 48, more than any other single action, enlightens judicial
inquiry into the nature and intent of the state-level contribution
to the basically dual structure of public schooling in the Detroit
area. As long as Detroit school authorities exercised their state-
delegated pupil assignment discretion (M.C.L.A. §§ 340.583, 340.-
589, State Brief App. 49aa) actively to maintain segregation, state
officials were content. To sustain this racially dual system of
schooling, state authorities needed to exercise their general and
specific supervisory authority over the local officials only to the
extent of tacit approval and the provision of financial support
and other wherewithal. But when DSD authorities exercised
their discretion to breach the dual structure by assigning white
pupils to the state-imposed black core, the State acted dramatically
to bring them back into line (and to prevent future straying) hy
making mandatory and explicit the State’s segregation policy-
Michigan’s delegation of local pupil assignment discretion, which
53
It was against that background with respect to the
nature and scope of the violation that the District Court
approached the question of commensurate relief.
III.
Based Upon Their Power and Duty to Achieve a Com
plete and Effective Remedy for the Violation Found,
Taking Into Account the Practicalities of the Situation,
the Courts Below Were Correct in Requiring Interdis
trict Desegregation.
Having found that the state and local defendants’ prac
tices had confined black children to a nucleus of black
schools, while reciprocally maintaining schools for white
children on the fringe of Detroit and beyond, the District
Court turned to the question of relief. From the outset
it has been undisputed that courts need not exercise their
petitioners parrot in their Briefs, is thus no discretion at all: it
is less than the local option for segregation which Kansas accorded
to Topeka, and more akin to the Southern compulsory segregation
laws with which Brown also dealt. It is in this context that the
other state-level contributions to racial dualism in Detroit area
schools (see pp. 50-51, supra) must be judged. Having mandated
segregation by statute, State petitioners may not rest on indulgent
presumptions of racial neutrality in defense of other of the State’s
actions which were found to have contributed to Detroit area
school segregation. The Act 48 violation at the very least shifts
to the State the heavy burden of establishing that racial, separa
tion of children in the Detroit area is in no part attributable to
other state-level discriminations against the DSD, and that state
financial support and tacit approval of local de jure practices
were not intended. Viewing the entire record, the lower courts
field in effect that no such showing was made. Cf. Keyes v. School
Bist. No. 1, supra. (The propriety of requiring state defendants
to justify their actions is all the more clear where the overwhelm-
rog majority of Michigan’s black children are attending school
systems found by federal courts to be suffering from systematic
racial discrimination in pupil and/or faculty assignments. See
note 17, supra.)
54
broad equity powers to the fullest if complete desegrega
tion can be accomplished simply; that is, within a lesser
area than encompassed by the violation and by means con
venient and economical rather than awkward and expen
sive. Cf. Swann, 402 U.S. at 15, 23. Moreover, all have
understood that desegregation planning is subject to prac
ticability limitations, Swann, 402 U.S. at 15, 30-31; if there
are not majority (or minority) children within an area
of feasible desegregation, then some schools will remain
as vestiges of violations because school authorities lack
the practical wherewithal to provide relief.46
Attention was given first to various Detroit-only deseg
regation plans. It was evident that the objective of “just
schools” in the relevant segregation area, itself about 80
percent white, could not be met by establishing almost 300
two-thirds black schools surrounded by a greater number
of virtually all-white schools. The District Court viewed
such proposals as tantamount to judicial validation and
compounding of the essence of the violation (J. 55a-56a).
The District Judge, guided by the principles established
by this Court, called upon the defendants to justify their
preference for an ineffective plan, in light of their obliga
tion to come forward with a plan that promises to ac
complish all-out desegregation now and hereafter. Green
46 Moreover, in many such largely one-race areas, either white
or black, “just schools” may mean a pattern of virtually one-race
schools. For example, in a State like Montana—with almost a
100% white population, we would expect normal administrative
practice to result in a consistent pattern of nearly all-white schools.
Similarly, in the “black belts” of the South normal administrative
practice may result in a consistent pattern of schools all pre
dominantly black. See, e.g., Wright v. Council of Emporia, supra;
United States v. Scotland Neck, supra. Bureau of the Census,
General Social and Economic Characteristics (1970), Tables 119-
120, 125. (Thus, petitioners’ citation of this Court’s approval-
indeed requirement— of “majority black” schools in such “black
belts” as authority for reversal of the lower courts in this case is *
non sequitur.)
—
55
v. County School Bd., 391 U.S. at 439; Keyes, 37 L.Ed. 2d
at 566.
The response of the state and suburban district peti
tioners has been that a Detroit-only plan must be held
constitutionally sufficient because school district boundary
lines are themselves an absolute legal impracticality of the
local situation ( J. 49a-50a). Such lines, it is maintained,
delineate self-governing units and are also school atten
dance boundaries or zones which federal courts are power
less to traverse or otherwise affect—absent a showing that
the lines have been created or gerrymandered for segre
gative purposes, as, for example, in United States v. State
of Missouri, 363 F. Supp. 739 (E.D. Mo. 1973).
In the course of the proceedings that ensued, the District
Court examined in detail local practicalities from stand
points of educational administration, traditional practices,
and other factors long relied upon by the courts in evaluat
ing the feasibility of desegregation proposals. (J. 61a-84a).
Apart from some very recent intimations of inconvenience
and interests involved, the petitioners have steadfastly de
clined to participate in that inquiry, or to set out competing
interests at stake, because of their view that the violations
and their effects had not extended beyond Detroit and
that, in any event, boundary lines are impermeable and
not subject to judicial tampering. (J. 62a-65a).
Plaintiffs’ view below was that, regardless of their status
under Michigan law, local districts are constitutionally not
more than administrative units of a state school system
which may be required—if practicable and necessary to ac
complish desegregation—to participate in remedying even
a violation limited to Detroit and its authorities. Reynolds
v. Sims, 377 IDS. 533, 575 (1964); Ex Parte Virginia,
100 U.S. 339, 347 (1880). Surely that is the case, in our
view, where the state was a principal in a violation whose
56
effects permeated its other units in the Detroit area. Cf. '
Hoots v. Comm, of Pennsylvania, 359 F. Supp. 807 (W.D,
Pa. 1973).
Of course, where the State in fact treats its districts as
malleable units whose powers are delegated and subject
to contraction, then it becomes clear that a happenstance
present form of organization actually does not serve an
interest which outweighs constitutional requirements whose
achievement is otherwise feasible. Moreover, where a State
regulates its districts as would a local board its decentral
ized regions or multi-school attendance zones, then the
asserted confrontation between federal judicial power and
inalienable local prerogatives is not presented. (J. 27a-
28a; J. 36a-38a; 165a-173a). Powers exercised by a State
in practice, as well as committed to it in constitutional
theory, are not less available merely because the State
chooses selectively to renounce or not to use them. Con
sequently, the inquiry below turned to actual Michigan
law and practice. Cf. Evans v. Buchanan, 256 F.2d 688,
690-693 (3d Cir. 1958).
The courts below concluded at length that Michigan op
erates and maintains a state school spvstem, not only in
the sense that the United States Constitution speaks to
the States and precludes sovereign, constitutionally unac
countable subdivisions, but also in the sense of actual
state control. The categories of state regulation are vir
tually endless, but especially pertinent here are the find
ings that pupils attend schools across district lines, that
district lines have not impeded the creation or operation
of intermediate districts and other special purpose units,
and that the State possesses the power, which it has
periodically exercised, to create, dissolve, and modify school
districts. (J. 23a-24a, 27a-28a, 36a~38a, 49a-50a, 57a, 79a-
80a, 96a, 151a-57a, 165a-75a) (See also pp. 64-65, infra)'
57
The District Court concluded, in substance, that boun
dary lines may indeed serve administrative convenience,
but that they do not embody other compelling interests,
and that they may not be transformed belatedly into im
permeable school attendance zone lines.47 (J. 27a-28a;
J. 79a-80a; J. 165a-175a).
Looking toward relief, the District Court again sought
the aid of the petitioners in identifying local practical
47 The particular welter of eight-five school districts in the
Detroit area is not necessary to promote any legitimate purpose.
First, the school district boundaries are largely unrelated to other
local governmental entities. District lines coincide with municipal
boundaries in only ten instances. Seventeen districts lie in two
counties, two in three counties. Two districts are totally sur
rounded by the DSD; another is bordered on three sides by the
DSD. One district serves five municipalities; while other suburban
municipalities are fragmented into as many as six school districts.
(See, e.g., Ex. M2). There is a total lack of regularity in the
shapes of these districts and their size ranges from 2,000 to 285,000
pupils; and over the past decades, the State has regularly altered
school district boundaries to suit its own purposes. In the face
of such maze, petitioners failed to show how the present school
district boundaries serve any identifiable interest that cannot be
served equally well by another line drawn elsewhere. (J. 79a-80a;
J. 167a-171a).
Second, the school districts and their boundaries were shown to
be administrative conveniences. The State has not hesitated regu
larly to cross or alter these lines in countless instances for a variety
of educational purposes. The State has been careful to preserve
its ultimate authority vis-a-vis the local districts; and the State
has provided detailed statutory guidance to the local districts
and has used its ultimate power to reverse any decision of a local
school district with which it took exception. In Michigan local
school districts are creations of the State designed to assist in
administering the State’s system of public schooling. (J. 36a-38a;
J- 50a; J. 79a-80a; J. 151a-154a; J. 165a-174a).
Finally, petitioners failed to show that the State’s legitimate
interest in delegating administrative responsibility for public
schooling to local districts, responsive to more local interests,
would be frustrated by crossing or modifying existing boundaries
m order to disestablish the state-imposed core of black schools.
Indeed, state law already provides the mechanisms, in detail, for
accomplishing such disestablishment by pupil transfers between
existing districts, e.g., M.C.L.A. §§ 340.582, 340.69, 340.121(d),
58
ities (other than the reiterated preference for the status
quo) so as to accommodate in every way possible existing
arrangements in the formulation of an adequate plan.
Perhaps in order to avoid an implied waiver of their
legal position, or perhaps because there are no imprae-
ticalities to inter-district desegregation, none were ad
vanced. In any event, in the present posture of this action
below, following remand by the Court of Appeals for
joinder of all possibly affected districts, adversary con
sideration of those issues is not yet foreclosed in order
to tailor any effective plan to promote legitimate state
and local interests.
This Court has held that state administrative or juris
dictional arrangements, however innocent in their incep
tion or unobjectionable in some contexts, must yield to
the achievement of constitutional remedies unless it can
be shown that there is no less discriminatory way of ful
filling important state interests. E.g., Carrington v. Rash,
340.1359, 340.1582, or annexation and consolidation, e.g., M.C.L.A
§§ 340.302a et seq., 388.681 et seq., and 340.183 et seq. Addition
ally, the lower courts here deferred any reorganization to the
legislature, thereby leaving it wholly free to experiment and adapt
local school districts in the Detroit area to suit local needs and
state obligations. (J. 80a-82a; J. 177a; J. 188a-189a).
Thus, in Wright v. Emporia, and United, States v. Scotland Ned,
supra, and San Antonio Independent School Dist. v. Rodrigua,
411 U.S. 1 (1973), this Court has recognized that local districts
may serve a legitimate state interest in decentralizing administra
tion to carry out state responsibilities and to respond to local
interests; but the Court made clear that the State’s choice of a
particular local arrangement may not serve to frustrate the fed
eral power to disestablish state-imposed segregation now and here
after. Here, as in Emporia and Scotland Neck, the lower courts
carefully considered local school districts as but one of the prac
ticalities of the local situation. They concluded that the States
legitimate interests can be met by a wide variety of available al
ternatives which do not require the maintenance of existing school
district boundaries as an absolute bar to disestablishing state-
imposed segregation. (Exercising judicial restraint, they then
deferred decision on which alternative to choose to the legislature)-
59
380 U.S. 89 (1965); Shapiro v. Thompson, 394 U.S. 618
(1969); compare White v. Regester, 37 L.Ed. 2d 314, 324-
26 (1973) with Whitcomb v. Chavis, 403 U.S. 124 (1971).
Similarly, the suburban districts urge that they may not
be required to participate in affording a remedy because
it has not been shown that as entities they participated
in the violation. But this Court has not required such a
showing as a precondition to involving state agencies or
components where that involvement is needed for ade
quate relief and is feasible. For example, over-represented
electoral districts are required to participate in reappor
tionment, although their only participation in the violation
was to do nothing about it. In addition, electoral districts
which themselves meet representation standards are fre
quently redrawn as a part of the process of redrawing
over- and under-represented districts. No finding of fault
on the part of each electoral district is a prerequisite to
involvement in the constitutionally required remedy.
Petitioners, understandably, seek to distinguish this case
from Brown IT’s express recognition that in remedying
state-imposed segregation the myriad of incidental and
largely unforeseeable administrative practicalities might
include “the revision of school districts,” as well as “ school
attendance areas” and other “local laws and regulations.”
349 U.S. 294, 301 (1955). Petitioners, understandably, also
seek to distinguish this case from Emporia’s express rec
ognition that local school districts may not be created
or used even to raise the potential for frustrating the
continued operation of a unitary system some time here
after. In their view, this case involves innocent lines which
have statistical effects but no stigmatization (cf. Spencer
Kugler, supra) or valid interests with secondary un
intentional effects {cf. James v. Valtierra, 402 U.S. 137
(1971) ; San Antonio Ind. School District v. Rodrigues,
60
supra) that are constitutionally unobjectionable. We are
willing to debate those issues, especially where the sub
ject matter involves both race and schools. But this Court
should bear in mind that to treat those contentions as
issues here unnecessarily disregards the lower court find
ings that the State intentionally confined blacks to schools
within a line in a way not constitutionally different from
intentionally drawing a line around them.48 (J. 87a).
In the final analysis then, this case does not entail the
involuntary involvement in remedy of strangers to the
violation. Unless the lower courts’ findings are to be over
turned, the State, functioning as the common mentor of
all systems in the Detroit area, was deeply and pro-
longedly involved in segregative practices which affected
its suburban units in an opposite and equal way to their
effect upon Detroit.49
48 The point is that such confinement to a state-imposed core of
black schools separate from surrounding white schools can be
readily accomplished by several means other than, but equally
effective as, gerrymandering a new school district line around the
black core population.
49 Thus, whatever the merits of the Fourth Circuit decision in
Bradley v. School Board of the City of Richmond, 462 F.2d 1058
(4th Cir. 1972), aff’d by equally divided Court, 412 U.S. 92 (1973),
the decision of the lower courts here is not in conflict. For in the
Richmond area, unlike the Detroit area, there had existed three
distinct dual systems with substantial numbers of black and white
children assigned to separate schools within each of the three
school divisions, pursuant to state law and practice. In the Fourth
Circuit’s view these three dual systems, each of which had already
been subject to federal scrutiny, had each been disestablished by
the time the district court ordered a consolidation of the districts.
462 F.2d at 1061. Here there is but one basic dual structure
throughout the metropolitan area; a state-imposed core of Black
schools surrounded by overwhelmingly white schools. Thus, in the
Detroit area, initial disestablishment of the basic dual structure
has yet to be accomplished.
There are other distinguishing features between Richmond and
Detroit as well. First, Richmond did involve a court-ordered con-
61
IV.
The Actions by the Lower Courts to Date Have Not
Violated any Federally Guaranteed Procedural Sight of
Suburban School Districts.
The presentations by suburban school district petitioners
and amici of argument on procedural issues is unhelpful
in analyzing the applicable legal principles or providing
guidelines on how parties and courts should proceed to
hear cases in the circumstances of this case. Without dis
tinction or analysis, petitioners yoke issues of equity juris
diction, who and what is protected by the Fifth and/or
Fourteenth Amendments, and what Rule 19 requires or
counsels. Before attempting to assay these issues in a
solidation of districts; here no consolidation has been ordered and
the framework of reorganization has been left to the political
processes. Second, the Fourth Circuit held that the “power to
operate, maintain and supervise public schools in Virginia is, and
always has been, within the exclusive jurisdiction of the local
school boards.” 482 F.2d at 1067. Here analysis of Michigan state
law and practice, and this case, “amply supports the finding that
the State of Michigan has not been subject to such limitations in
its dealings with local school boards.” (J. 175a). Rather, local
school districts in Michigan are subordinate governmental entities
fashioned by the State to assist in the state function of public
education and are absolutely subject to the State’s power. (J. 165a-
171al. J; 79a-81a; J. 30a; J. 36a-38a). Third, we hope by now
that it is manifest that the courts below were not motivated in
this ease by the non-judicial goal of imposing a “fixed racial
quota./ Contrast 462 F.2d at 1064. Finally, the Fourth Circuit
determined that the causes of racial concentration in the Rich
mond area were unknown and did not include action by school
authorities. 462 F.2d at 1066. Based upon the reeord evidence
tae courts below found that intentional and discriminatory action
by state and Detroit school authorities, operating in conjunction
with various state policies, had a pervasive impact on the con-
hnement of black children to, and official identification of, the
black core, which actions had an interdependent effect on the
pervasive residential segregation (itself largely the result of pub-
lc and private discrimination), which in turn further contributed
1,0 “ e dual, structure. (J. 23a-24a; 77a-78a; 151a-157a; 177a).
62
coherent fashion, the Court should recognize at the outset
two facts which override review of procedural issues in
this case.
First, at this stage of the proceedings, suburban school
districts have been finally ordered to do absolutely nothing
substantial. Hence, their claims of procedural deprivation
are merely claims of potential error; and any such potential
error may be corrected on remand prior to the entry of any
final order, by the proceedings already under way in the
District Court.50 In our Memorandum in Opposition to
Petitions for Writs of Certiorari, p. 3, n. 2, we have already
noted that at these proceedings on remand suburban school
districts will have the opportunity to present relevant evi
dence on all issues, even as to the constitutional violations
found by the District Court, upon a proper showing.51
50 In remanding this case the Court of Appeals directed the
District Court to afford to “any party against whom relief is
sought, including school districts which heretofore have intervened
and school districts which hereafter may become parties . . . an
opportunity to offer additional evidence, and to cross-examine
available witnesses who previously have testified, on any issue
raised by the pleadings, including amendments thereto, as may
be relevant and admissible to such issues.” (J. 177a-178a) This
direction is in accord with the traditional legal principles under
which federal courts in equity actions have always afforded par
ties litigant an opportunity to be heard upon a proper showing
of the relevance and admissibility of evidence. Cf. Kelley v. Met
ropolitan County Bd. of Educ., 463 F.2d 732, 745-46 (6th Cir.),
cert, denied, 409 U.S. 1001 (1972). We respectfully suggest that
the District Court will allow the added defendants to develop all
relevant evidence on the issues both of violation and of remedy
upon a proper showing. (Although the Court of Appeals added
that the District Court need not consider evidence with respect
to the constitutional violation and inadequacy of “Detroit-only
plans (J. 178a), it did not direct the District Court to refuse to
consider such evidence if offered.)
51 The suburban school districts recognize, however, that their
own discriminatory and segregative conduct has not been ques
tioned by the plaintiffs nor considered by the District Court.
(E.g. Grosse Pointe Brief 6). Plaintiffs’ amended complaint to
63
On this review there is no just cause for believing, in
advance of the District Court’s ruling on specific evidence
presented by suburban school districts, that it will restrict
petitioners from the opportunity to be heard on all issues
relevant to a final order to disestablish state-imposed
segregation.52
conform to the evidence does not allege such de jure conduct by
suburban school districts but only violations by Detroit and State
defendants, operating in conjunction with the discriminatory
effects of state law already of record. (Ia.291 et seq.; Allen Park
Brief 20 n.14) Thus, exactly what suburban school districts may
add to consideration of the violation findings or evidence remains
unclear; after eighteen months of trial and appellate litigation
they have never said what evidence they would or could present
on this issue. But whatever it is they have to add on remand,
they will have an opportunity to present it in order to challenge
the previous findings of the District Court and create a record
for appellate review. Indeed, they have an opportunity any liti
gator would treasure: they inay sift through the evidence of
record and the findings for the purpose of attempting either to
destroy them or to present evidence supportive of an alternative
view. In view of the evidence already introduced documenting
the use by Detroit and Michigan school officials of virtually all
of the classic segregating techniques which have been identified
by this and other courts, the District Court’s violation findings
seem likely to be reaffirmed; perhaps, that reality is what suburban
school districts seek most to avoid by their present claims of
procedural error.
5; The petitioner suburban school districts did attempt below to
relitigate the Brown decision by suggesting a return to the dis
credited “separate but equal” policy on the basis of “new” social
science studies purporting to show that desegregated schooling
does not raise the achievement test scores of black children as
much as some_ other social scientists may have originally sug
gested. The District Court excluded such evidence, in our view
Properly, because its finding of state-imposed segregation and con-
S1(™ ° n of a remedy therefor were not based in any way on
such achievement test” evidence; thus such evidence was and is
nfiinjant’ TIle I)istrict Court’s reasoning fully supports that
In the main such proof entirely misses the point: the viola
tion here found has to do with school segregation caused in
substantial part by force of public authority and action; yet
the intervening defendants’ questions and offer of proof speak
64
Second, plaintiffs framed and tried this case against
State-level agencies and officials who were sued for the
purpose, inter alio,, of assisting in the provision of all relief
that a trial on the merits might show to be necessary; and
they would clearly he bound by any injunction issued by
the District Court.* 53 The powers of these state officials to
assist in providing relief to plaintiffs, even across the
boundaries of school districts not parties, is clear as a
matter of both state and federal law. Under state law action
of the State defendants is required in order to permit
the operation of almost all the affairs of the local school
districts: for example, (1) absent statement, authorization
and warrant, state aid would not be distributed to local
mainly to educational theory and recent and sometimes con
tradictory research about narrowly measured educational ef
fects, mostly on achievement test scores, of quite limited be
ginnings of racial or socioeconomic integration of various
types and as compared with the effects of dollar or other
resource inputs and continued segregation. This court does
not understand, however, that such research, from the
Coleman report to its many reanalyses, formed the primary
bases for the Brown decision or any of its progeny. See, e.g.,
Brunson v. Bd. of Trustees, 429; 2d 820, 826 (4th Cir. 1970)
(J. Sobeloff, concurring). In the context similar to newly
intervening defendants’ objections to desegregation, the Su
preme Court in Swann specifically held that such factors
constitute an impermissible limit upon the duty to desegregate.
402 U.S. at 24, fn.8. Citation to such research, either in sup
port or rejection of school desegregation, misses the primary
point: insofar as pupil assignments are concerned, the system
of public schooling in every state must be operated in a
racially non-discriminatory, unified fashion; until that objec
tive is met, the very system of public schooling constitutes
an invidious racial classification. (J. 89a)
53 This jg not to suggest that non-parties would not have a con
stitutional duty to refrain from taking action which would ob
struct the vindication of plaintiffs’ constitutional rights, only that
such non-parties might not be held in contempt for taking such
action until joined as parties and subjected to the jurisdiction
and commands of the court. Cf. Rule 65(d), F.R. Civ. Pd
Schrader v. Selective Service System Local Bd. No. 76, 329 F.
Supp. 966, 967 n.l (W.D. Wis. i971). See also Cooper v. Aaron,
358 U.S. at 17-20.
65
districts, M.C.L.A. §388.1117; (2) absent inspection and
approval of new school plans (and, formerly, sites), schools
could not be built, M.C.L.A. §388.851; (3) absent qualifica
tion, school building bonds could not be sold; (4) absent
certification, teachers could not teach, M.C.L.A. §388.1010;
(5) and absent approval, no borrowing for school opera
tions can be made, M.C.L.A. §388.1234. The State defen
dants also have general supervision over, and power to
promulgate regulations governing, all public education in
the State. Mich. Const. Art. VIII, Sec. 3; Welling v. Li
vonia Bd. of Ed., 382 Mich. 620 (1969). They have the
power to require each local board of education and officer
to comply with the law, including by institution of appro
priate legal proceedings in courts of competent jurisdic
tion, and by removal of non-complying local officials from
office, M.C.L.A. §§340.252-53 ;Si thus, they must, for exam
ple, insure that no school or department is kept for any
person on account of race or color, M.C.L.A. §340.355,
and prevent denial of the equal protection of the laws and
racial discrimination, Mich. Const. Art. 1, Sec. 2. Mani
festly, State defendants had the authority to prevent the
violation here and now have the statutory authority prac
ticably, subject to the District Court’s injunction, to insure
the implementation of complete relief absent some legis
lative intervention or local resistance to such lawful ac
tions.64 65 That federal district courts have the power to
64 Thus the State defendants in the past and now could enforce
any law, constitutional requirement, or injunction by resort to
appropriate state courts.
0 Moreover, and in addition to their affirmative Fourteenth
Amendment obligations, State defendants', as the disbursers of
ederal funds, have assumed a legally enforceable duty under
title VI of the Civil Rights Act of 1964,. 42 U.S.C. §2000d, to
Prevent or eliminate racial discrimination in any program receiv
ed :6ê eral financial assistance. See Lemon v. Bossier Parish
Mhool Board, 240 F.Supp. 709, 713 (W.D. La. 1965), aff’d, 370
1.2d 847 (5th Cir. 1967); Lau v. Nichols, — U.S. —— , 42
U.S.L.W. 4165 (Jan. 12, 1974).
66
order state officials subject to their jurisdiction to exer
cise such powers to disestablish state-imposed school seg
regation, with or without local school districts as parties,
is by now obvious. See, e.g., United States v. Texas Educ.
Agency, 321 F. Supp. 1043 (E.D. Tex. 1970) and 330 F.
Supp. 235 (1971) aff’d with mod., 447 F.2d 441 (5th Cir.
1971), stay denied, 404 U.S. 1206 (Black, J. in Chambers),56
cert, denied, 404 U.S. 1016 (1971); Lee v. Macon County
Bd. of Educ., 267 F. Supp. 458 (M.D. Ala.), aff’d per
curiam, 389 U.S. 215 (1967); United States v. Georgia,
428 F.2d 377 (5th Cir. 1970), 445 F.2d 303 (5th Cir. 1971),
466 F.2d 197 (5th Cir. 1972); Evans v. Buchanan, 256 F.2d
688 (3d Cir. 1958), 281 F.2d 385 (3d Cir. 1960); Hoots v.
Commonwealth of Pennsylvania, 359 F. Supp. 807, 821-2
(W.D. Pa. 1973).
Given this context, the following discussion will attempt
to analyze the procedural issues, and the ramifications of
alternative approaches, should this Court wish to provide
guidelines to the parties and the District Court on remand.
We reiterate, however, our view that such consideration
is both premature and unnecessary. 66
66 On the stay application, Mr. Justice Black considered an
order directing state education officials to take “certain affirma
tive action” to eliminate all vestiges of discrimination from the
public schools in the State of Texas “by withholding funds and
accreditation” from local school districts which failed to meet
their constitutional obligations. The District Court order “ dealt
with areas of student transfers, changes in school district boundar
ies, school transportation . . . ” Justice Black denied the stay
application because the District Court’s order “ does no more in
my view than endeavor to realize the directive of the Fourteenth
Amendment that racial discrimination in the public schools must
be eliminated root and branch.” 404 U.S. at 1206-1207.
67
A. In the Circumstances of This Case, Rule 19 and Tradi
tional Principles of Equity Jurisdiction Do Not Require
the Joinder of Local School Districts Where the Parties
Already Before the District Court Can Grant Effective
Relief and There Remains a Substantial Uncertainty
Whether and How Their Interests Will Be Affected, If
At All.
In 1966 Rule 19, F.R. Civ. P., was amended to overcome
the severe problems which had accompanied interpretation
of the technical definitions under the former rule and the
diverse practicalities which face federal district judges in
the course of proceedings. The notes of the Advisory Com
mittee state the principles for decision under the amended
rule in the circumstances of this case:
1. Whenever feasible, persons materially interested
in the subject of an action should be joined if in
their absence complete relief could not be accorded
among those already parties or the disposition of
the action would be as a practical matter impair
or impede the absent party’s ability to protect his
interest; however, when this comprehensive joinder
cannot be accomplished, for example because of
lack of jurisdiction over the party sought to be
joined, the case should be examined pragmatically
and a choice made between the alternatives of
proceeding with the action among the present par
ties or dismissing the action.
2. If it is not feasible to make such persons parties,
the court should determine whether in equity and
good conscience the action should proceed among
the parties or should be dismissed, based on several
factors: In the person’s absence will the judgment
be prejudicial to him? By the shaping of relief
or other measures can the prejudice be minimized?
68
Will the judgment in the person’s absence be ade
quate? Will plaintiff have an adequate remedy if
the action is dismissed for non-joinder?57
3. A person may be added as a party at any stage
of the action on motion (or on the court’s initiative
under Rules 19 or 21); joinder questions should be
made with reasonable promptness, but decision may
properly be deferred if adequate information is not
available at the time.
4. Even if the court is mistaken in its decision to pro
ceed in the absence of an interested person, it does
not by that token deprive itself of the power to
adjudicate as between the parties already before
it; but the court can make a legally binding adjudi
cation only between the parties actually joined in
the action. Although such adjudication may ad
versely affect the absent person as a practical
matter, such factor does not negate the power to
adjudicate as between the parties who have been
joined.
5. As Rule 19 is equitable not jurisdictional in char
acter, the court should not dismiss for nonjoinder
when circumstances make it inequitable to do so;
for the court always has the jurisdiction to bind
the parties already present. 67
67 The word “ indispensable” is used in Rule 19(b) in a conclu-
sory sense: a person is regarded as indispensable when upon con
sideration of the various factors, it is determined that in his
absence it would be preferable to dismiss the action rather than
to retain it. See Notes of Advisory Committee to 1966 Amend
ment; Provident Bank v. Patterson, 390 U.S. 108, 118-119 (1968).
Thus, a court may “ proceed to an adjudicaiton without the pres
ence of a necessary party but cannot do so if the absent party
is indispensable.” 3A Moore’s Federal Practice fl9.107[3], p. 2251
(2d Ed. 1972).
69
In Provident Bank v. Patterson, 390 U.S. 102 (1968)
this Court fully supported the Advisory Committee’s analy
sis and statement of dispositive principles in the “contest
of a particular litigation.” 390 U.S. at 118.
In applying these principles in the context of this par
ticular litigation, we respectfully submit that the District
Court’s deferral of ruling on the joinder issue while pro
ceeding with the action was entirely proper; that, in any
event, any final adjudication made by the District Court
would and should be binding on at least the original State
and Detroit defendants even in the absence of all other
parties; and finally, that if the District Court made a mis
take with respect to joinder of parties, such mistake should
be cured in the proceedings already under way on the
remand. These conclusions are supported by the following
factors: 1
1. This action commenced without knowledge of the
necessary extent and nature of relief. Throughout the
hearings on violation and then remedy, adequate informa
tion on the nature and extent of needed relief remained
unavailable; as no actual plan has ever been submitted,
there has been no basis for knowing what school districts
might be involved and to what extent protection of any
of their interests cognizable under Rule 19 might be
impeded. Intervening defendants Magdowski, et at., did
file a motion to join all 86 school districts in the tri-county
area. (Ia 19) On three separate occasions the District
Court expressly deferred ruling on this motion because of
the lack of adequate information on which to make a deter
mination: “ Considered as a plan for desegregation, the
motion is lacking in specificity and is stated in the broad
est general terms.” (J. 39a) (J. 44a; Ia 204). Under Rule
19 such deferral of decision on the joinder issue is proper
until adequate information is available for a decision. Due
70
to State defendants’ default in failing to submit an actual
plan of desegregation, suck deferral was entirely proper
at least until after the District Court’s findings and rulings
of June 14, 1972, on the tentative desegregation area and
action required in the development of a plan. Arguably,
at that point in time the District Court for the first time
should have made a decision under Rule 19 on the joinder
of absent parties. But the propriety of the District Judge’s
deferral of ruling through that time is especially clear in
light of his obvious desire to allow interested parties to be
heard despite the practical difficulties.58
2. Absent some affirmative obstruction by absent parties,
the State defendants had sufficient authority to implement
any injunction of the court even if it required action
beyond the geographic limits of the Detroit School District.
Hence, as noted above, the parties already before the Court
could accord complete relief. See, e.g., Hoots v. Common
wealth of Pennsylvania, 359 F. Supp. 807, 821-2 (W.D.
Penn. 1973); United States v. Texas Educ. Agency, supra;
Husbands v. Commonwealth of Pennsylvania, 359 F. Supp.
925, 937 (E. D. Pa. 1973). In the event any such obstruc
tion or other necessity requires joinder of additional
parties either to accord or maintain complete relief, such
joinder could be accomplished pursuant to either Rule 19
or Rule 21. See, e.g., Griffin v. County School Board of
Prince Edward County, 377 U.S. 218, 234 (1964).59 68 69
68 The failure of the Court of Appeals to examine the propriety
of the District Court’s reasons for deferring decision on the
joinder issue is inexplicable.
69 In many school desegregation actions such absent parties are
joined long after the prior adjudication and orders among existing
parties. See, e.g., United States v. Georgia, 466 F.2d 197 (5tli
Cir. 1972) ; Robinson v. Shelby County Bd. of Education, 330
F. Supp. 837, 844-45 (W.D. Tenn. 1971), aff’d, 467 F.2d 1187
(6th Cir. 1972). For example, many city councils or finance
71
3. Due to the nature of relief contemplated by the lower
courts, and particularly deferral of any reorganization to
the legislature with interim relief to be accomplished by
contracts and pupil transfers between existing districts
pursuant to state law, the suburban school districts have
no interest cognizable by Rule 19 to be protected in this
action. As local school districts are subject to the absolute
control of the legislature and action by the State defendants
to conform to the requirements of law, they have no legal
interest requiring protection under Rule 19. Hoots v. Com
monwealth of Pennsylvania, supra; Evans v. Buchanan,
256 F.2d 688 (3rd Cir. 1958); Husbands v. Commonwealth
of Pennsylvania, 359 F. Supp. 925, 937 (E.D. Pa. 1973);
also cf. Hunter v. Pittsburgh, 207 U.S. 161, 178-9 (1907);
Trenton v. New Jersey, 262 U.S. 182 (1923); Att’y General
v. Lowrey, 131 Mich. 639 (1902), aff’d, 199 U.S. 232, 239-
240 (1905). This is especially true in view of the fact that
the conduct of suburban school districts was never put in
issue by plaintiffs. See, e.g., Griffin v. State Board of Edu
cation, 239 F. Supp. 560, 566 (E.D. Va. 1965).
4. Assuming arguendo that school districts have had
some interest cognizable under Rule 19 in the litigation
to date, their ability to protect such interest has not as
a practical matter been impaired or impeded by the prior
proceedings in the District Court. At every stage in these
proceedings, some party has adequately protected the in
commissions have been added recently (to provide necessary de
segregation funding) to cases already hoary with age. If the
novel procedural suggestions of apaici and petitioners in this case
are accepted, failure to join such necessary parties at the onset
°i the action requires dismissal of the action in each of these
cases. But see, e.g., Griffin v. County School Board of Prince
award County, 377 U.S. 218 (1964); Aaron v. Cooper, 156 F.
npp. 220 (E.D. Ark. 1957), aff’d sub nom., Faubus v. United
Mates, 254 F.2d 797 (8th Cir. 1958).
72
terests of all suburban districts possibly at issue. At the '
violation hearing, Detroit and State defendants actively
contested tbe proof of violation as to its nature, extent, and
continuing effects. Thereafter, State defendants opposed
any desegregation beyond tbe limits of the DSD; so too,
did the suburban parent and school district intervenors.
Thus whatever relevant interests absent suburban school
districts could have asserted at each stage of the proceed
ings were asserted and adequately represented by at least
one party already defendant. Cf. New Jersey v. New York,
345 U.S. 369, 372-3 (1953); Kentucky v. Indiana, 281 U.S.
163 (1930).
5. The District Court evidenced its clear desire to permit
all interested parties to be heard:
. . . I do not propose to stop the voice of anybody who
is apt to be affected by the plan. So this is a matter
of mechanics. When the time comes that action has to
be taken in that regard we will give it further thought
and make a decision that we believe will be a fair one
and yet will permit us to proceed with some dispatch
in achieving some remedial effects. . . . (J. 44a).
Subsequently, the District Court permitted suburban school
districts, as well as a group of suburban parents, to par
ticipate as parties in the hearings.
6. Assuming arguendo that the District Court made a
mistake in not joining absent school districts, there canhe
no question in equity and good conscience that this action
could properly proceed to a final adjudication among those
who were parties on September 27, 1971.60 Rule 19(b) sets
60 Professors Wright and Miller suggest that actions against
public officials often raise questions concerning the joinder ot
other officials. They approvingly note the trend in recent cases
73
out four factors to be considered in determining whether
the action should be dismissed because of the absence of
a party or go forward without him. The first three factors
have already been analyzed: in this case the judgment as
shaped is not prejudicial to any interest of a suburban
district cognizable by Rule 19 and relief can be granted to
plaintiffs in the absence of suburban school districts. The
fourth factor, however, compels the conclusion that the
essence of equity would require that this action not be dis
missed but rather continued among those already parties.
For if the action is dismissed or the lower court rulings
and decisions vacated for non-joinder under Rule 19,
plaintiffs will most assuredly not have an adequate rem
edy for the long-standing violation already found; further
delay in the disestablishment of the state-imposed system
of segregation will mean, inevitably, further denial of
plaintiff children’s constitutional rights and will irrepara
bly harm them “in a way unlikely ever to be undone.”
Brown 1, 347 U.S. at 494. Twenty years after Brown, the
constitutional command to end state-imposed segregation
requires continuation of this action at least among those
already parties. After several years of trial proceedings
among adversary parties with the power to grant all re
lief necessary and the showing of a pervasive constitu
tional violation, it would be unconscionable for plaintiffs
to be told that all that has gone before is naught. We
respectfully suggest that any other ruling will have dev
astating consequences upon the ability of litigants and
district courts everywhere fairly and promptly to hear
V e t ermine the joinder issue based simply on whether effective
re lei can be accorded on the basis of the parties already before
_e court, even where joinder of the absent officials is feasible.
federal Practice and Procedure, Sec. 1617 (1972).
74
constitutional claims and, upon showing, to provide prompt
and adequate relief among the parties present.61
B. Petitioners and Amici School Districts Have Not Been De
nied Any Procedural Rights Guaranteed to Them hy the
Fifth and Fourteenth Amendments.
At the outset, we reiterate that any potential procedural
error can he cured hy the proceedings on remand long
61 On remand from the Court of Appeals, plaintiffs acquiesced
in the thrust of that court’s direction, not out of agreement but
oirt of a desire to get on with the proceedings. Upon plaintiffs’
motion, the District Court joined as parties all 86 school districts,
their members and superintendents, in the tri-county area pursu
ant to Rules 19 and 21. (Ia 287-290; la 300-302). At the same
time plaintiffs filed an amended complaint to conform to the evi
dence (Ia 300 et seq.) ; no allegations were made about the con
duct of suburban school districts. As noted, in the proceedings
on that remand, the added parties will have an opportunity to
present all relevant evidence, including any as to violation, upon
a proper showing.
The joinder decision of the Court of Appeals apparently turned
on its belief that suburban school districts had such relevant
information and particular interest in any relief extending be
yond the DSD that they must be joined at hearings which ad
dress such multi-district relief. Whatever the merits of the joinder
ruling of the Court of Appeals, generally such a belief properly
distinguishes the comparative lack of information and interest of
the suburban districts with respect to Detroit-only considerations,
It also represents a proper recognition that suburban school dis
tricts were not and are not “ indispensable” to the prior proceed
ings. In plaintiffs’ view of Rule 19, however, the District Court
will have joined these suburban parties and allowed them to be
heard in the exercise of its discretion not because required to do
so by Rule 19 and traditional equity principles. In that regard,
if this Court directs, plaintiffs would be entirely amenable to pro
ceeding with the action below in the absence of suburban school
districts and their board members and superintendents; plaintiffs
submit that relief can be accorded by State and Detroit defendants,
with additional parties joined only (1) when and if they affirma
tively obstruct implementation of any plan eventually ordered by
the District Court, cf. Griffin v. County School Board, 377 U.S.
218 (1964) ; or (2) when and if the interests in efficient admin
istration of justice require, cf. United States v. Georgia, 466 FM
197, 200 (5th Cir. 1972),
75
before the District Court has ordered any suburban school
district to do anything: on remand they will have a mean
ingful opportunity at a meaningful time to challenge any
of the previous findings of the District Court by presenta
tion of relevant evidence, including by cross-examination
of witnesses who have previously testified. This was pre
cisely the procedure followed in Bradley v. Richmond, 51
F.R.D. 139 (E.D. Ya. 1970), which petitioners cited in the
Court of Appeals as the proper procedure to follow.
Moreover, the Richmond litigation started ten years be
fore any suburban school district was joined. Equally dis
positive, the District Court has treated these parties with
fundamental fairness in the context of the nature of the
proceedings below to this point (See Counter statement,
supra). Finally, the equitable considerations underlying
Rule 19 apply with equal force to the fundamental fair
ness of procedures followed below. (See Argument, supra).
Petitioners and amici school districts, however, have
failed in the circumstances of this case even to show
how they fall within the guarantees of any constitutional
provision.
1. The Fourteenth Amendment is clearly inapposite
here; it speaks only to procedural deprivation resulting
from “state action,” not the prior proceedings and potential
future orders of a federal district court. U.S. Const.
Amend. 14.
_2- The Fifth Amendment, which does speak to the exer
cise of federal rather than state power, reads in pertinent
part:
No person shall . . . be deprived of life, liberty or
property without due process of law. U.S. Const.
Amend. 5.
76
School districts in the context of this litigation have no
interest protected by this provision for two distinct reasons.
First, school districts should not be considered “persons”
nnder the Fifth Amendment. The entire Amendment liter
ally reads as if to protect natural persons62 or wholly pri
vate interests from the excesses of federal public power.
Thus in South Carolina v. Katsenbach, 383 U.S. 301, 323-
324 (1966), this Court held:
The word “person” in the context of the due process
clause of the Fifth Amendment cannot, by any reason
able mode of interpretation, be expanded to encompass
the States of the Union, and to our knowledge this has
never been done by any court. Nor does a State have
standing as the parent of its citizens to invoke this
constitutional provision against the Federal Govern
ment, the ultimate parens patriae of every American
citizen.
With respect to the Federal Government and federal dis
trict courts, precisely the same statements can be made
about the various political subdivisions of the States, which
after all are wholly creatures of the State and subject to
its will absolutely, without protection from the State’s
caprice under either the Fourteenth Amendment or the
Contracts Clause. Hunter v. Pittsburgh, 207 U.S. 161, 178-
62 Whether a municipal corporation is a “person” varies with
its use. Compare City of Kenosha v. Bruno, 412 U.S. 507 (1973)
(not a “person” for 42 U.S.C. §1983) with Santa Clara; County V,
Southern R.R. Co., 118 U.S. 394 (1886) (a “person” under the
Fourteenth Amendment). (Justices Douglas and Black have ex
pressed their dissent from the view that “persons” in the Four
teenth Amendment includes other than natural persons. Conn.
Gen. Life Ins. v. Johnson, 303 U.S. 77, 83-90 (1938) ; Wheeling
Steel Corp. v. Glander, 337 U.S. 562, 576-581 (1949)). And under
Michigan law, school districts lack even the status of municipal
corporations, as mere “auxiliaries” of the State, see A tt’y General
v. Lowrey, 131 Mich. 639 (1902).
77
179 (1907); Trenton v. N.J., 262 U.S. 182, 186 (1923). This
is not to suggest that federal district courts may act arbi
trarily toward States or their political subdivisions,63 but
only that the Fifth Amendment provides no protection.
Rather, the sources of protection for a school district and
a State from arbitrary abuse at the hands of a district
court are the Federal Rules of Civil Procedure and con
siderations of equity.
Second, even assuming arguendo that the school districts
are “persons” under the Fifth Amendment and protected
thereby from any excesses of federal judicial power, the
school districts have no interest cognizable by the Fifth
Amendment which has been threatened by the proceedings
below. To draw the analogy from the Fourteenth Amend
ment procedural protection of corporations from arbitrary
state action, school districts could assert at most only their
“proprietary” interests in “property,” if any;64 for “life”
and “liberty” remain attributes only of natural persons.
See, e.g., Hague v. C.I.O., 307 U.S. 496, 527 (1939); (sep
arate opinion, Stone, J.) • Western Turf Association v.
68 We note in this regard that this Court in several of its origi
nal jurisdiction cases has held that the interests of a political sub
division of a State are adequately represented by the State and
has refused to permit intervention by the political subdivision.
See, e.g., New Jersey v. New York, 345 U.S. 369 (1953). We fail
to see, therefore, absent a showing of inadequate representation,
why the interests of the petitioners and amici political subdivisions
here have not been served similarly by petitioner State defendants.
64 And as noted supra, note 62, under Michigan law school dis
tricts may not even possess the attributes, including proprietary
interests, of municipal corporations. Based on that state law, the
State Attorney General has ruled (1) that funds expended by
local districts are the funds of the State and (2) that the school
buildings and lands of local districts are the property of the
State. Attorney General Opinions No. 406 (May 28, 1947) and
No. 4371. Compare Essex Public Road Board v. Skinkle, 140 U.S.
^9-340 (1891) ; City of New Orleans v. New Orleans Water
Works Co., 142 U.S. 79, 92 '(1891).
78
Greenberg, 204 U.S. 359, 363 (1907); Northwestern Nat’l
Life Ins. Co. v. Biggs, 203 U.S. 243 (1906). In this case the
relief contemplated has been shaped to avoid any depriva
tion of the property interests of any school district.
Thus the lower courts, in the exercise of their discretion
to date, have provided suburban school districts with more
procedure than is required by Rule 19 or the Constitution
of the United States. We urge that petitioners’ novel the
ories of procedure, both with respect to Rule 19 and the
Constitution, be rejected by this Court.
CONCLUSION
Since Brown, and in direct violation of their constitu
tional rights as therein declared, black children in Detroit
have been intentionally confined, by various de jure devices,
to an expanding core of black schools always separated by
a line from immediately surrounding white schools. Be
cause of the continuing nature of that constitutional viola
tion, reflected in the expansion of the state-imposed core
of black schools, petitioners seek to interpose as the new
dividing line the existing boundaries of the Detroit School
District. If that dividing line is permitted to stand without
breach to perpetuate the basic dual structure, the inten
tional confinement of black children in schools separate
from whites will continue for the foreseeable future. The
violation of constitutional rights will continue without
remedy. Such a result is not only to repeal Brown and to
return these children to Plessy, but also to undermine the
system of constitutional government in the United States.
For as stated by Chief Justice Marshall, in Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 163 (1803),
The government of the United States has been em
phatically termed a government of laws and not of
79
men. It will certainly cease to deserve this high appel
lation, if the laws furnish no remedy for the violation
of a vested legal right.
W herefore Respondents Ronald Bradley, et al., respect
fully pray that this Court affirm the judgment below.
Respectfully submitted,
J . H a r o l d F l a n n e r y
R o b e r t P r e s s m a n
Larsen Hall, Appian Way
Cambridge, Mass. 02138
J a c k G r e e n b e r g
N o r m a n J . C h a c h k i n
10 Columbus Circle
New York, New York 10019
E l l io t t H a l l
950 Guardian Building
Detroit, Michigan 48226
Attorneys for Respondents
Ronald Bradley, et al.,
Plaintiffs Below
Na t h a n ie l R . J o n e s
1790 Broadway
New York, New York 10019
Louis R . L u c a s
W il l ia m E. C a l d w e l l
525 Commerce Title Bldg.
Memphis, Tennessee 38103
P a u l R . D im o n d
210 East Huron Street
Ann Arbor, Michigan 48108
80
Note on Form of Record Citations
Throughout this brief, the following forms of citation
have been employed:
“J. —” refers to petitioners’ Joint Appendix to their
certiorari petitions, containing the opinions below.
Citations preceded by a roman numeral, e.g., “Ia —
“IYa —,” refer to volumes of the Single Appendix filed
in this Court on these consolidated cases.
Portions of the transcript which form part of the record
herein, but which were not included within the Single
Appendix, are cited as follows:
—Citations to the transcript of the “violation hear
ings” which took place in the summer of 1971 as
“ R . — .”
—Citations to the transcripts of other hearings are
preceded by appropriate identification of the hear
ing to which reference is made, e.g., “8/29/70 pre
liminary hearings Tr. —.” See generally, Counter
statement of the case, supra.
Exhibits introduced at the various hearings are identified
as follows:
—Exhibits at the 1971 “violation” hearings as “P.X.
—” [plaintiffs’ ], “D.X. —” [defendants’ ], etc.
—Exhibits at the hearings on proposed metropolitan
plans as “Ex. —,” “P.M. —” [plaintiffs’ m etropoli
tan], etc.
Other record citations are largely self-explanatory. We
also note that the text of Keyes v. School Dist. No. 1, 413
U.S. 189 (1973), is cited to Lawyers’ Edition, 2d Series
throughout the body of this Brief since it was reported
in United States Reports advance sheets only as this
Brief was being submitted to the printer.
MEILEN PRESS INC — N. Y. C. 219
IN THE
SUPREME COURT OF THE UNITED STATES
October T erm 1973
No. 73-434
WILLIAM G. MILLIKEN, ET AL.,
vs.
RONALD G. BRADLEY, ET AL.,
Petitioners,
Respondents.
No. 73-435
ALLEN PARK PUBLIC SCHOOLS, ET AL.,
vs.
RONALD G. BRADLEY, ET AL.,
Petitioners,
Respondents.
No. 73-436
THE GROSSE POINTE PUBLIC SCHOOL SYSTEM,
Petitioner,
vs.
RONALD G. BRADLEY, ET AL.,
Respondents.
On Writs of Certiorari to the United States Court of
A ppeals for the Sixth C ircuit.
BRIEF FOR RESPONDENTS
BOARD OF EDUCATION FOR THE SCHOOL
DISTRICT OF THE CITY OF DETROIT, ET AL.,
GEORGE T. ROUMELL, JR.
RILEY AND ROUMELL
THOMAS M. J. H ATH AW AY
JOHN F. BRADY
GREGORY P. THEOKAS
STANLEY C. MOORE, III
C ^ H0LAS REVELOS, O f Com
720 Ford Building
Detroit, Michigan 48226
Telephone: 313/962-8255
Counsel fo r Respondents,
BOARD OF EDUCATION FOR
THE SCHOOL DISTRICT OF
THE CITY OF DETROIT,
a school district of the first class;
Pa t r i c k McDo n a l d ,
JAMES H ATH AW AY and
CORNELIUS GOLIGH TLY,
members of the Board of
Education For The School District
of the City of Detroit and
NORM AN DRACHLER, Superintendent
of the Detroit Public Schools.
1
INDEX
Page
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED................................................................................. 1
STATEMENT OF THE CASE ..................................................... 3
1. The Pervasive State Control o f Education In Michigan . 3
2. The Litigation ....................................................................... 6
3. The State Violations ........................................................... 7
4. The Remedial Aspects ......................................................... 9
(a) Due Process Claims ..................................................... 9
(b) The Complete Ineffectiveness o f Detroit-Only
Plans .............................................................................. 10
5. The Compelling Necessity For A Metropolitan Remedy . 14
SUMMARY OF ARGUMENT .................................................... 16
ARGUMENT.................................................................................. 19
I THE STATUS OF SCHOOL DISTRICTS UNDER
MICHIGAN LAW, AS INSTRUMENTALITIES OF THE
STATE, WITH RESPONSIBILITY FOR EDUCATION
VESTED SOLELY IN THE STATE, MAKES THE
STATE RESPONSIBLE FOR PROVIDING AN EF
FECTIVE DESEGREGATION REMEDY ....................... 19
II PETITIONER SCHOOL DISTRICTS’ ALLEGATIONS
THAT THEY WERE DENIED DUE PROCESS ARE
WITHOUT MERIT .............................................................. 38
NEITHER THE STATE OF MICHIGAN NOR ITS
PO LITICAL SU BDIVISION S, PETITIONER
SCHOOL DISTRICTS, ARE “ PERSONS” FOR THE
PURPOSE OF FIFTH AMENDMENT DUE PRO
CESS..................................................................................... 38
JOINDER OF PETITIONER SCHOOL DISTRICTS
IS NOT REQUIRED EITHER TO PROTECT THEIR
INTERESTS OR TO PROVIDE ADEQUATE RE
LIEF..................................................................................... 40
ii
THE COURTS BELOW ACTED IN A MANNER
WHICH WOULD AVOID UNNECESSARY DELAY
AND STILL PROTECT ANY COGNIZABLE INTER
EST OF PETITIONER SCHOOL DISTRICTS............. 52
III THE STATE OF MICHIGAN THROUGH ITS AC
TIONS AND INACTIONS HAS COMMITTED DE
JURE ACTS OF SEGREGATION, THE NATURAL,
FORESEEABLE, AND PROBABLY CONSEQUENCES
OF WHICH HAVE FOSTERED A CURRENT CONDI
TION OF SEGREGATION THROUGHOUT THE DE
TROIT METROPOLITAN COMMUNITY......................... 65
THE VIOLATIONS........................................................... 65
IV DETROIT-ONLY DESEGREGATION PLANS ARE
NOT CONSTITUTIONAL REMEDIES BECAUSE
THEY DO NOT ELIM IN ATE, “ ROOT AND
BRANCH” , THE VESTIGES OF THE UNCONSTITU
TIONAL DETROIT SCHOOL SEGREGATION..............83
ANY DETROIT-ONLY REMEDY WOULD LEAVE
THE DETROIT SCHOOL SYSTEM RACIALLY
IDENTIFIABLE AS BLACK THEREBY NOT RE
MOVING THE VESTIGES OF THE STATE IM
POSED SEGREGATION.................................................. ®
A DETROIT-ONLY PLAN LEADS TO RESEGRE
GATION RATHER THAN CONVERSION TO A UN
ITARY SCHOOL SYSTEM............................................. 88
A DETROIT-ONLY PLAN LEAVES THE DETROIT
SCHOOL SYSTEM PERCEPTIBLY BLACK.................. 91
V A METROPOLITAN REMEDY IS REQUIRED TO EF
FECTIVELY REMEDY DE JURE SEGREGATION IN
THE DETROIT SCHOOL SYSTEM................................... 96
SCHOOL DISTRICT LINES MAY NOT PREVENT A
CONSTITUTIONAL REMEDY..................................... 9fi
BRADLEY v. RICHMOND DOES NOT APPLY...........i0°
THE RELEVANT COMMUNITY IS THE METRO
POLITAN DETROIT COMMUNITY...............................101
A METROPOLITAN DESEGREGATION REMEDY
IS EDUCATIONALLY SOUND AND PRACTICAL. . 103
VI THE TRANSPORTATION SYSTEM PROPOSED IN
THE METROPOLITAN REMEDY CAN BE PRACTI
CAL AS TO REASONABLE DISTANCES AND TRA
VEL TIMES AND WILL EFFECTIVELY DESEGRE
GATE...........................................................................................107
VII THIS HONORABLE COURT HAS ESTABLISHED
THAT THE ELEVENTH AMENDMENT DOES NOT
PREVENT A FEDERAL COURT FROM ORDERING
THE EXPENDITURE OF STATE FUNDS FOR THE
IMPLEMENTATION OF A PLAN OF DESEGREGA
TION............................................................................................117
VIII A THREE JUDGE DISTRICT COURT IS NOT RE
QUIRED SINCE THE CONSTITUTIONALITY OF A
STATEWIDE STATUTE IS NOT BEING CHAL
LENGED.....................................................................................122
CONCLUSION ................................................................................ 125
EXHIBIT I .................................................................................. 126
IV
TABLE OF AUTHORITIES
Cases:
Aguayo v. Richardson, 473 F.2d 1090 (2nd Cir. 1973), cert,
denied sub. nom. 42 U.S.L.W. 3406 (1974) ......................... 39
Alabama v. United States, 314 F. Supp. 1319 (S.D. Ala.
1969) appeal dismissed, 400 U.S. 954 (1970) .................... 73
Angersinger v. Hamlin, 407 U.S. 25 (1972) ..............................120
Arizona v. Department o f Health. Education and Welfare,
449 F.2d 456 (9th Cir. 1971) ................................................ 39
Attorney General v. Detroit Board o f Education, 154 Mich.
584, 108 N.W. 608 (1908) ................ .................................... 21
Attorney General, ex rel Kies v. Lowrey, 131 Mich. 639,
92 N.W. 289(1902), aff’d, 199 U.S. 233 (1905) . . . . 21,25,26
Barr Rubber Products Co. v. Sun Rubber Co., 277 F. Supp.
484 (S.D.N.Y. 1967), 279 F. Supp. 49 (S.D.N.Y. 1968),
425 F.2d 1114 (2nd Cir. 1970) cert, denied, 400 U.S. 878
(1970) ..................................................................................... 61,62
Bell v. City School o f Gary, 213 F. Supp. 819 (N.D. Ind.
1962), affd, 324 F.2d 209 (7th Cir. 1963), cert, denied,
377 U.S. 924(1964) ................................................................ 73
Benger Laboratories Ltd. v. R.K. Laros Co., 24 F.R.D. 450
(E.D. Penn. 1959) ..................................................................... 62
Birmingham School District v. Roth, 410 U.S. 954 (1973) . . 53
Bloomfield Hills School District v. Roth, 410 U.S. 954
(1973) ......................................................................................... 53
Bradley v.Milliken, 338 F. Supp. 582 (E.D. Mich. 1971) . . 3,9,
52, 84,85
Bradley v.Milliken, 433 F.2d 897 (6th Cir. 1971).6,79
Bradley v. Milliken, 438 F.2d 945 (6th Cir. 1971) _7,56,80
Bradley v.Milliken, 484 F.2d 215 (6th Cir.. 1973) 63, 83, 84,97
Bradley v. School Board o f the City o f Richmond, 51 F.R.D.
139 (D.C. Va. 1970) ................................................................ 63
Bradley v. School Board o f the City o f Richmond, 462 F.2d
1058 (4th Cir. 1972), aff’d by an equally divided court,
412 U.S. 9 2 (1 9 7 3 ) ........................................................... 100, 101
Page
V
Brown v. Board o f Education o f Topeka, 347 U.S. 483
(1954) ................................ 3 ,1 4 ,6 3 ,9 1 ,9 2 ,9 5 ,1 0 3 ,1 1 4 ,1 2 2
Brown v. Board o f Education o f Topeka, 349 U.S. 294
(1955) ................................................................ 3, 14, 86,97, 103
Page
Carroll v. Finch, 326 F. Supp. 891 (D. Alas. 1971) ................ 39
Child Welfare Society o f Flint v. Kennedy School District,
220 Mich. 290, 189 N.W. 1002 (1922) ................................ 22
Cisneros v. Corpus Christi Independent School District, 330
F. Supp. 1377 (1971) .............................................................. 120
Collins v. Detroit, 195 Mich. 330, 161 N.W. 905 (1917) . . . . 22
Connecticut v. Department o f Health, Education and Wel
fare, 448 F.2d 209 (2nd Cir. 1971) ....................................... 39
Cooper v. Aaron, 358 U.S. 1 (1958) .................. 19 ,97 ,117 ,118
Davis v. Board o f School Commissioners o f Mobile County,
402 U.S. 33 (1971) .............................................. 8 6 ,8 8 ,9 6 ,1 0 4
Evans v. Buchanan, 256 F.2d 688 (3rd Cir. 1 9 5 8 ) ......... 47, 48, 49
Evans v. Ennis, 281 F.2d 385 (3rd Cir. 1960) ......................... 119
Ex parte Collins, 277 U.S. 565 (1928) ..................................... 123
Ex parte Young, 209 U.S. 123 (1908) .................................117, 118
Fair Housing Development Fund Corp. v. Burke, 55 F.R.D.
414 (E.D.N.Y. 1972) .............................................................. 61
Ford Motor Co. v. Department o f Treasury o f Indiana, 323
U.S. 459 (1945) ......................................................................... 117
Gideon v. Wainwright, 372 U.S. 335 (1963) ............................ 120
Go million v. Lightfoot, 364 U.S. 339 (1960 )........................... 96
Goss v. Board o f Education, 373 U.S. 683 (1 9 6 3 ) .................. 90
Graham v. Folsom, 200 U.S. 248 (1 9 0 6 ) .................................. 117
Green v. County School Board o f New Kent County, 391
U.S. 430 (1968) ................................... 1 4 ,8 3 ,8 6 ,8 8 ,8 9 ,9 0 ,9 6
Grijfin v. County School Board o f Prince Edward County,
377 U.S. 218 (1964) ....................................................... 118,119
Higgins v. Board o f Education o f the City o f Grand Rapids,
Michigan, (W.D. Mich. CA 6386), Slip Op., July 18, 1973 . 63
Hoots v. Commonwealth o f Pennsylvania, 359 F. Supp. 807
(W.D. Penn. 1973) .............................................................45,46,47
Husbands v. Commonwealth o f Pennsylvania, 359 F. Supp.
925 (E.D. Penn. 1973) ............................................................ 45,47
Irnlay Township District v. State Board o f Education, 359
Mich. 478, 102 N.W.2d 720 (1960) ..................................... 29
In re State o f New York, 256 U.S. 490(1921) ....................... 117
Johnson v. Gibson, 240 Mich. 515, 215 N.W. 333 (1927) . . . 29
Jones v. Grand Ledge Public Schools, 349 Mich. 1, 84 N.W.
2d 327 (1957) ............................................................................ 105
Kelley v. Metropolitan County Board o f Education o f Nash
ville and Davidson County, 463 F.2d 732 (6th Cir. 1972),
cert, denied, 409 U.S. 1001 (1972) .......................................120
Keyes v. School District No. 1, Denver, Colorado, 413 U.S.
189 (1973) ....................................................... 9, 65, 81, 107, 114
Lansing School District v. State Board o f Education, 367
Mich. 591, 116 N.W.2d 866 (1962) ..............................22,23,29
Lee v. Macon County Board o f Education, 267 F. Supp. 458
(M.D. Ala. 1967), a ff’d, 389 U.S. 215 (1967) . . . 40,41,42,43,
45,49,50
Lee v. Macon County Board o f Education, 448 F.2d 746 (5th
Cir. 1971) ................................................ ...........................91, 100
Lee v. Nyquist, 318 F. Supp. 710 (W.D. N.Y. 1970), aff’d,
402 U.S. 935 (1971) ................................................................ 73
Louisiana v. United States, 380 U.S. 145 (1 9 6 5 ) .................... 00
MacQueen v. City Commission o f Port Huron, 194 Mich.
328, 160 N.W. 627 (1916) ....................................................... 22
Monroe v. Board o f Commissioners, 391 U.S. 450 (1968) . .14, 90
Newburg Area Council, et al. v. Board o f Education o f Jef
ferson County, Kentucky, et al. Civ. Nos. 73-1403,
73-1408, (6th Cir. filed Dec. 28, 1973) Slip Op................... 106
North Carolina State Board o f Education v. Swann, 402 U.S.
43 (1 9 7 1 ) ..................................................................... 84, 107,lH
VI THE TRANSPORTATION SYSTEM PROPOSED IN
THE METROPOLITAN REMEDY CAN BE PRACTI
CAL AS TO REASONABLE DISTANCES AND TRA
VEL TIMES AND WILL EFFECTIVELY DESEGRE
GATE........................................................................................ 107
VII THIS HONORABLE COURT HAS ESTABLISHED
THAT THE ELEVENTH AMENDMENT DOES NOT
PREVENT A FEDERAL COURT FROM ORDERING
THE EXPENDITURE OF STATE FUNDS FOR THE
IMPLEMENTATION OF A PLAN OF DESEGREGA
A METROPOLITAN DESEGREGATION REMEDY
IS EDUCATIONALLY SOUND AND PRACTICAL. . 103
TION.................................................................... 117
VIII A THREE JUDGE DISTRICT COURT IS NOT RE
QUIRED SINCE THE CONSTITUTIONALITY OF A
STATEWIDE STATUTE IS NOT BEING CHAL
LENGED..................................................................................... 122
CONCLUSION ................................................................................ 125
EXHIBIT I ............................................................ 126
TABLE OF AUTHORITIES
Cases:
Aguayo v. Richardson, 473 F.2d 1090 (2nd Cir. 1973), cert,
denied sub. nom. 42 U.S.L.W. 3406 (1974) ......................... 39
Alabama v. United States, 314 F. Supp. 1319 (S.D. Ala.
1969) appeal dismissed, 400 U.S. 954 (1970) .................... 73
Angersinger v. Hamlin, 407 U.S. 25 (1972) ............................. 120
Arizona v. Department o f Health, Education and Welfare,
449 F.2d 456 (9th Cir. 1971) ................................................ 39
Attorney General v. Detroit Board o f Education. 154 Mich.
584, 108 N.W. 608 (1908) .................................................... 21
Attorney General, ex rel Kies v. Lowrey, 131 Mich. 639,
92 N.W. 289(1902), aff’d, 199 U.S. 233 (1905) ____21,25,26
Barr Rubber Products Co. v. Sun Rubber Co., 277 F. Supp.
484 (S.D.N.Y. 1967), 279 F. Supp. 49 (S.D.N.Y. 1968),
425 F.2d 1114 (2nd Cir. 1970) cert, denied, 400 U.S. 878
(1970) ....................................................................... ............. 61,62
Bell v. City School o f Gary, 213 F. Supp. 819 (N.D. Ind.
1962), aff’d, 324 F.2d 209 (7th Cir. 1963), cert, denied,
377 U.S. 924(1964) ................................................................ 73
Benger Laboratories Ltd. v. R.K. Laros Co., 24 F.R.D. 450
(E.D. Penn. 1959) .................................................................... 62
Birmingham School District v. Roth, 410 U.S. 954 (1973) . . 53
Bloomfield Hills School District v. Roth, 410 U.S. 954
(1973) ......................................................................................... 53
Bradley v. Milliken, 338 F. Supp. 582 (E.D. Mich. 1971) . . 3,9,
52, 84,85
Bradley x.Milliken, 433 F.2d 897 (6th Cir. 1971)........ 6,79
Bradley v. Milliken, 438 F.2d 945 (6th Cir. 1971) . . . . 7,56,80
Bradley v. Milliken, 484 F.2d 215 (6th Cir. 1973) 63, 83, 84, 97
Bradley v. School Board o f the City o f Richmond, 51 F.R.D.
139 (D.C. Va. 1970) .............. . . . 1...................................... 63
Bradley v. School Board o f the City o f Richmond, 462 F.2d
1058 (4th Cir. 1972), aff’d by an equally divided court,
412 U.S. 92 (1 9 7 3 ) ............................................................ 100,101
Page
V
Brown v. Board o f Education o f Topeka, 347 U.S. 483
(1954) ................................ 3 ,1 4 ,6 3 ,9 1 ,9 2 ,9 5 ,1 0 3 ,1 1 4 ,1 2 2
Brown v. Board o f Education o f Topeka, 349 U.S. 294
(1955) ................................................................ 3, 14, 86, 97, 103
Carroll v. Finch, 326 F. Supp. 891 (D. Alas. 1971) ................ 39
Child Welfare Society o f Flint v. Kennedy School District,
220 Mich. 290, 189 N.W. 1002 (1922) ................................ 22
Cisneros v. Corpus Christi Independent School District, 330
F. Supp. 1377 (1971) .............................................................. 120
Collins v. Detroit, 195 Mich. 330, 161 N.W. 905 (1917) . . . . 22
Connecticut v. Department o f Health, Education and Wel
fare, 448 F.2d 209 (2nd Cir. 1971) ....................................... 39
Cooper v. Aaron, 358 U.S. 1 (1958) .................. 19 ,97 ,117 ,118
Davis v. Board o f School Commissioners o f Mobile County,
402 U.S. 33 (1971) .............................................. 86,88, 96,104
Evans v. Buchanan, 256 F.2d 688 (3rd Cir. 1 9 5 8 ) ......... 47, 48, 49
Evans v. Ennis, 28 1 F.2d 385 (3rd Cir. 1960) ......................... 119
Ex parte Collins, 277 U.S. 565 (1928) ..................................... 123
Ex parte Young, 209 U.S. 123 (1 9 0 8 ) ................................. 117,118
Fair Housing Development Fund Corp. v. Burke, 55 F.R.D.
414 (E.D. N.Y. 1972) .............................................................. 61
Ford Motor Co. v. Department o f Treasury o f Indiana, 323
U.S. 459 (1 9 4 5 ) ......................................................................... 117
Gideon v. Wainwright, 372 U.S. 335 (1963) ............................ 120
Gomillion v. Lightfoot, 364 U.S. 339 (1960 )............................ 96
Goss v. Board o f Education, 373 U.S. 683 (1 9 6 3 ) .................. 90
Graham v. Folsom, 200 U.S. 248 (1 9 0 6 ) .................................. 117
Green v. County School Board o f New Kent County, 391
U.S. 430 (1968) .................................. 1 4 ,8 3 ,8 6 ,8 8 ,8 9 ,9 0 ,9 6
Grifjin v. County School Board o f Prince Edward County,
377 U.S. 218 (1964) ....................................................... 118, 119
Page
VI
Higgins v. Board o f Education o f the City o f Grand Rapids,
Michigan, (W.D. Mich. CA 6386), Slip Op., July 18, 1973 . 63
Hoots v. Commonwealth o f Pennsylvania, 359 F. Supp. 807
(W.D. Penn. 1973) .............................................................45,46,47
Husbands v. Commonwealth o f Pennsylvania, 359 F. Supp.
925 (E.D. Penn. 1973) ............................................................ 45,47
Imlay Township District v. State Board o f Education, 359
Mich. 478, 102 N.W.2d 720(1960) 29
In restate o f New York, 256 U.S. 490 (1921) ....................... 117
Johnson v. Gibson, 240 Mich. 5 15, 215 N.W. 333 (1927) . . . 29
Jones v. Grand Ledge Public Schools, 349 Mich. 1, 84 N.W.
2d 327 (1957) ............................................................................... 105
Kelley v. Metropolitan County Board o f Education o f Nash
ville and Davidson County, 463 F.2d 732 (6th Cir. 1972),
cert, denied, 409 U.S. 1001 (1972) ....................................... 120
Keyes v. School District No. 1, Denver, Colorado, 413 U.S.
189 (1973) ....................................................... 9, 65, 81, 107, 114
Lansing School District v. State Board o f Education, 367
Mich. 591, 116 N.W.2d 866 (1962) ..............................22, 23,29
Lee v. Macon County Board o f Education, 267 F. Supp. 458
(M.D. Ala. 1967), aff’d, 389 U.S. 215 (1967) . . . 40, 41,42,43,
45, 49,50
Lee v. Macon County Board o f Education, 448 F.2d 746 (5th
Cir. 1971) 91,100
Lee v. Nyquist, 318 F. Supp. 710 (W.D. N.Y. 1970), affd,
402 U.S. 935 (1971) .................................................. 73
Louisiana v. United States, 380 U.S. 145 (1 9 6 5 ) .................... 00
MacQueen v. City Commission o f Port Huron, 194 Mich.
328, 160 N.W. 627 (1916) ........................................................ 22
Monroe v. Board o f Commissioners, 391 U.S. 450 (1968) . .14, 90
Newburg Area Council, et al. v. Board o f Education o f Jef
ferson County, Kentucky, et al. Civ. Nos. 73-1403,
73-1408, (6th Cir. filed Dec. 28, 1 973) Slip Op................... 106
North Carolina State Board o f Education v. Swann, 402 U.S.
43 (1 9 7 1 ) ................................................................... 84^107,114
Page
v ii
Oliver v. Kalamazoo Board o f Education, Civ. No. K-88-71
CA (W.D. Mich., filed October 4, 1973) Slip. Op................... 52
Osborn v. Bank o f United States, 9 Wheat 738 (1824) ......... 117
Phillips v. United States, 312 U.S. 246 (1 9 4 1 ) ...........................124
Provident Tradesmens Bank & Trust Co. v. Patterson, 390
U.S. 102 (1968) ......................................................................... 60
Reynolds v. Sims, 377 U.S. 533 (1 9 6 4 ) ..............................96, 120
San Antonio Independent School District v. Rodriguez, 411
U.S. 1 (1973) ....................................................................... .67, 74
South Carolina v. Katzenbach, 383 U.S. 301 (1966) ......... 38, 39
Spencer v. Kugler, 326 F. Supp. 1235 (D. N.J. 1971), aff’d,
404 U.S. 1027 (1972) ....................................................... 86,124
Swann v. Charlotte-Mecklenburg Board o f Education, 318 F.
Supp. 786 (W.D. N.C. 1970) .................................................. 120
Swann v. Charlotte-Mecklenburg Board o f Education, 402
U.S. 1 (1971) ....................................... 3, 14, 83, 84, 86, 90, 99,
100, 104, 107, 110, 114, 120
United States v. Scotland Neck City Board o f Education, 407
U.S. 484 (1972) .............................................................. 86, 87, 97
United States v. Texas, 330 F. Supp. 235 (E.D. Texas 1971),
Supp’g 321 F. Supp. 235 (E.D. Texas 1970), aff’d, 447
F.2d 441 (5th Cir. 1971), cert, denied sub. nom., Edgar v.
United States, 404 U.S. 1016(1972) ..................................... 100
United States v. State o f Texas, 447 F.2d 441 (5th Cir.
1971) ................................................................................. 97
Welling v. Livonia Board o f Education, 382 Mich. 620, 171
N.W.2d 545 (1969) .................................................................. 24
West Bloomfield Hills School District v. Roth, 410 U.S. 954
(1973) .....................................-................................................... 53
Wright v. Council o f the City o f Emporia, 407 U.S. 451
(1972) ..................................................... 8 3 ,8 6 ,8 7 ,8 8 ,9 7
Page
v i i i
Constitutions
U.S. Const, amend V ................................................................ 3s
U.S. Const, amend XI ......................................................... M17
Northwest Ordinance o f 1787, art. Ill .................. 1, 3, 19, laa
Mich. Const, o f 1835, art. X, § 1 ................................ 2, 19, laa
Mich. Const, o f 1835, art. X, §3 ......................... 2, 13, 19, laa
Mich. Const, o f 1850, art. XIII, § 1 ........................... 2, 20,2aa
Mich. Const, o f 1850, art. XIII, §4 ....................... 2, 3, 20, 2aa
Mich. Const, o f 1908, art. XI, §2 ......................... 2 ,3 , 20, 3aa
Mich. Const, o f 1908, art. XI, §6 ........................... 2, 20, 3aa
Mich. Const, o f 1908, art. XI, §9 ..................... 20, 21 ,22 ,4aa
Mich. Const, o f 1963, art. IV, § 2 ......................................... 3
Mich. Const, o f 1963, art. VIII, § 2 ..................... 2,23,79,4aa
Mich. Const, o f 1963, art. VIII, §3 .............. 2, 23, 24, 79,5aa
Va. Const, of 1902, § § 132, 133 ........................................... 35
Federal Statutes and Rules
28 U.S.C. §2281 .........
42 U.S.C. § 2000(d) . . .
Fed. R. App. P. 4 .........
Fed. R. App. P. 5 .........
Fed. R. Civ. P. 1 9 .........
Fed. R. Civ. P. 21 .........
Fed. R. Civ. P. 2 4 .........
1 2 3 , 1 2 4 , 5aa
. . . . 105
................................................... 60
1 6 , 4 0 , 4 5 , 4 6 , 5 6 , 6 0 , 63, 119,6aa
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 6 ,11 9
.. . . . . . . . . . . . . . . . . . . 53, 7aa
Public Acts
Act 70, Mich. Pub. Acts o f 1842 ...........................................
Act 233, Mich. Pub. Acts o f 1869 ........................................ 3
Act 314, Mich. Pub. Acts o f 1881 ........................................
Act 310, Mich. Pub. Acts o f 1889 ........................................ 3
Act 315, Mich. Pub. Acts o f 1901 ..............................2, 26, aa
Act 251, Mich. Pub. Acts o f 1913 ........................................ ...
Act 239, Mich. Pub. Acts o f 1967 ..................... 2, 26, 27, I2aa
Act 32, Mich. Pub. Acts o f 1968 .............................. 2, 27, 16aa
Act 244, Mich. Pub. Acts o f 1969 ......... 2, 5, 34, 77, 78, l°aa
A c t 48, § 12, Mich. Pub. Acts o f 1970 . 2, 5, 6, 34, 77, 78, >
80 ,81 ,82 , 123, 124,21a*
. . . . 2, 30, 2laa
. 2, 27,39aa
Act 134, Mich. Pub. Acts o f 1971 .
Act 255, Mich. Pub. Acts o f 1972 .
IX
Act 1, Mich. Pub. Acts o f 1973 ................................... 2, 34, 43aa
Act 2, Mich. Pub. Acts o f 1973 ................................... 2, 34, 46aa
Act 12, Mich. Pub. Acts o f 1973 ................................ 2, 27, 50aa
Act 101, §51(4), Mich. Pub. Acts o f 1973 ......................... 105
Act 101, §77, Mich. Pub. Act o f 1973 ................................ 68
Code of Ala., Tit. 52, §§ 14, 15, 1 7 ,2 0 ,3 1 ,3 3 ,3 4 ,4 5 ,4 7 ,
209,451(4) ....................................................................... 42,43
Michigan Statutes Michigan
M.C.L.A. §209.101 etseq .......................................................... 30
M.C.L.A. §211.34 ..................................................................... 30
M.C.L.A. §211.148 ................................................................... 30
M.C.L.A. §325.511 ................................................................... 42
M.C.L.A. §340.251 .............................................................42, 54aa
M.C.L.A. §340.252 ..............................................29, 30, 42, 54aa
M.C.L.A. § 340.252a............................................................... 56aa
M.C.L.A. §340.253 .................................................. 29, 51, 57aa
M.C.L.A. §340.330-.330(a) ..................................... 33,60-61aa
M.C.L.A. §340.361-.365 .................................................. 42, 61aa
M.C.L.A. §340.376 ................................................................... 42
M.C.L.A. §340.402 ................................................................... 43
M.C.L.A. § §340.461-.468 ......................................... 28, 62-66aa
M.C.L.A. §340.467 ............................................................. 28, 65aa
M.C.L.A. §340.575 .................................................. 30, 32, 67aa
M.C.L.A. §340.623 .................................................................. 42
M.C.L.A. §340.689 .................................................................. 34
M.C.L.A. §388.171 etseq .............................................5, 34, 18aa
M.C.L.A. §388.182 ............................................................ 5, 21aa
M.C.L.A. §388.201 etseq .............................................................27, 16aa
M.C.L.A. §388.221 et seq.............................................................27, 39aa
M.C.L.A. §388.251 etseq .............................................................27, 50aa
M.C.L.A. §388.371 ................................................................... 42
M.C.L.A. §388.611 et seq. . . .......................................... 30, 22aa
M.C.L.A. § 388.71 1 et seq.......................................... 26, 27, 1 2aa
M.C.L.A. §388.851 .................................................... .. . 43, 79aa
M.C.L.A. §388.933 .................................................................. 43
M.C.L.A. §388.1001 et seq...............................................4, 34, 43
M.C.L.A. §388.1009 ................................................................ 42
Page
X
M.C.L.A. §388.1010 ................................................ 28, 42, 80aa
M.C.L.A. §388.1014 ................................................................ 42
M.C.L.A. §388.1031 .................................................. 105
M.C.L.A. §388.1101 et seq........................................................ 43
M.C.L.A. §388.1121 ................................................................ 42
M.C.L.A. §388.1161 ......................................................... 42
M.C.L.A. §388.1 171 ....................................................... 51, 80aa
M.C.L.A. §388.1175 ................................................................ 43
M.C.L.A. §388.1179 ................................................................ 8
M.C.L.A. §390.51 .................................................................... 4
M.C.L.A. §395.21 .................................................................... 42
M.C.L.A. §395.81 .................................................................... 42
Page
Miscellaneous
Annual Report, Mich. Dept, o f Ed., 1970 ....................... 26,72
Report o f the Commission on Constitutional Revision, 266
(1968) ...................................................................................... 35
“ Elementary and Secondary Education and the Michigan
C on stitu tion ” Michigan Constitutional Convention
Studies p. 1 (1961) .................................................................. 25
Burger, “ The State o f the Federal Judiciary — 1972,” 58
A.B.A.J. 1049 (1972) ................................................................122
Cohn,“The New Federal Rules o f Civil Procedure,” 54 Geo.
L. J. 1204, (1966) .................................................................. 60
Foster, “ Desegregating Urban Schools; A Review o f Tech
niques,” 43 Harv. Educ. Rev. 5 (1973) ............................. 88
Moore, “ In Aid o f Public Education: An Analysis o f the
Education Article o f the Virginia Constitution o f 1971,”
5 U. Richmond L. Rev. 263, (1971) .................................. 35
Pindur, “ Legislative and Judicial Rolls in the Detroit School
Decentralization Controversy,” 50 J. Urban Law 53
(1972) .................................................................................... 79
Wright, Law o f Federal Courts (2d ed. 1 9 7 0 )........................1^
Comment, Why Three-Judge District Courts?” , 25 ALA. L.
Rev. 371 (1973) ...................................................................... I22
Op. Atty. Gen. No. 4705 (July 7, 1970) ............................. 32
1
In T he
SUPREME COURT OF THE UNITED STATES
O ctober T erm 1973
No. 73-434
WILLIAM G.MILLIKEN, ET AL.,
vs.
RONALD G. BRADLEY, ET AL.,
Petitioners,
Respondents.
No. 73-435
ALLEN PARK PUBLIC SCHOOLS, ET AL.,
vs.
RONALD G. BRADLEY, ET AL.,
Petitioners.
Respondents.
No. 73-436
THE GROSSE POINTE PUBLIC SCHOOL SYSTEM,
Petitioner,
vs.
RONALD G. BRADLEY, ET AL.,
Respondents.
On Writs of C ertiorari to the United States C ourt of
A ppeals for the Sixth Circuit.
BRIEF FOR RESPONDENTS
BOARD OF EDUCATION FOR THE SCHOOL
DISTRICT OF THE CITY OF DETROIT, ET AL.,
CONSTITUTIONAL PROVISIONS,
STATUTES AND RULES INVOLVED
The constitutional provisions, statutes and rules particularly
relevant to the issues in this case are: U.S. Const. Amend. XI;
Northwest Ordinance o f 1787, art. Ill; Mich. Const, o f 1835, art.
2
X; Mich. Const, o f 1850, art. XIII; Mich. Const, o f 1908, art.XI;
Mich. Const, o f 1963, arts. IV, V III;28 U.S.C. §2281;Fed. R. Civ.P.
19; Fed. R. Civ. P. 24; Act 315, Mich. Pub. Acts o f 1901; Act 239,
Mich. Pub. Acts o f 1967; Act 32, Mich. Pub. Acts o f 1968; Act
24, Mich. Pub. Acts o f 1969; Act 48, §12 Mich. Pub. Acts of
1970; Act 134, Mich. Pub. Acts o f 1971; Act 255, Mich. Pub. Acts
o f 1972; Act 1, Mich. Pub. Acts o f 1973; Act 2, Mich. Pub. Acts
o f 1973; Act 12, Mich. Pub. Acts o f 1973; and various Michigan
statutes listed in the Index to Appendix to Brief For Respondents
Board o f Education for the School District o f the City o f Detroit,
et al.
Explanatory Note
References to appendices, records and exhibits will be indicated
by page numbers enclosed in parentheses and designated as
follows: Single volume Appendix to Petitions for Writs of Cer
tiorari: (la )
Five volume Joint Appendix: (la 1)
Appendix to this Brief o f constitutional, statutory and proce
dural provisions: (laa)
Record o f Trial: (R l)
Exhibits: Plaintiffs’ (PX )
3
STATEMENT OF THE CASE
Eight federal judges below (one District Court judge and
seven Court o f Appeals judges, including one dissenting judge)
have found that the State o f Michigan has committed de jure acts
of segregation resulting in the unconstitutional racial isolation o f
280,000 school children in the Detroit metropolitan community.
These violations, in the Courts’ opinion, were the direct result o f
actions and inaction on the part o f officers and agents at the state
and local levels, either acting alone or in combination with one
another. Bradley v. Milliken, 338 F. Supp. 582 (E.D. Mich. 1971)
(17a); 484 F.2d215 (6th Cir. 1973) (110a). Consistent with
Brown I, Brown II, and Swann, the District Court, exercising its
traditional equity power in school segregation cases, has attempted
to remedy constitutional violations by fashioning an effective
desegregation plan designed to eliminate the vestiges o f segregation
“root and branch” and to establish “ schools, not a White and a
Negro school, just schools,” so as to prevent resegregation.
1. THE PERVASIVE STATE CONTROL OF EDUCATION
IN MICHIGAN
Regardless o f what may be true in other states and common
wealths, the single irrefutable fact o f the Michigan education
system is the existence o f legal and practical pervasive state con
trol. The Michigan Constitution o f 1963 provides as follows:
“The Legislature shall maintain and support a system o f free
public elementary and secondary schools as defined by
law. . . .” Mich. Const., art. IV, §2.
Stemming from the mandate o f the Northwest Ordinance ot
1787, the above quoted constitutional language was substantially
the same in Michigan’s three previous constitutions. [Mich. Const.,
art. X, §3 (1835); art. XIII, §4 (1850); art. XI, § 2 (1908)]. Al
though the Michigan Legislature has created local school districts
for administrative convenience’ the Michigan Supreme Court has
consistently held that these districts are mere instrumentalities and
agencies of the State controlled by the State. (166a-167a). This
4
axiom o f Michigan school law has also been affirmed by the
United States Supreme Court, (see discussion infra p. 25).
This pervasive state control o f elementary and secondary
schools in Michigan is illustrated by the following facts:
(1) Although Michigan had 7,333 school districts in 1910,
the number o f school districts by June 30, 1972, as a result of
legislative fiat, had been reduced to 608. In many cases, these
s ch oo l districts (including several school districts in Wayne
County, the county in which Detroit is situated) were merged or
annexed by state mandate and without local consent. (168a-l69a).
However, despite such massive consolidation, school districts in
Michigan still bear little relationship to political boundary lines,
(see e.g., Ia255).
(2) The state frequently moves property and school children
from district to district; provides massive state financing; dictates
the number of, and length of, school days; requires certain courses
to be taught; controls the use o f particular textbooks; approves
building plans; and imposes many other standards o f regulatory
control. (M.C.L.A. §388.1001 et seq.).
(3) The State provides certain educational opportunities for
Michigan children that are obtained by crossing, on a daily basis,
school district boundary lines. (79a).
(4) Under Michigan law (M.C.L.A. §390.51) s c h o o l build
ing contruction plans must be approved by the State Board of
Education. At least during the period from 1949 to 1962, the
State Board o f Education had specific authority to supervise
school site selection.
(5) The construction o f schools in the State o f M ichigan is
funded, in whole or in part, through the sale o f municipal con
struction bonds. These bonds must be approved by the Municipal
Finance Commission, a state agency that includes in its member
ship the State Superintendent o f Public Instruction, the Governor
of the State o f Michigan and the Attorney General o f the State of
Michigan.
5
The pervasiveness o f State control over local school districts
in Michigan is no more evident than in the Detroit school district.
On at least five occasions since the district was organized in 1842,
the State has reorganized the structure o f the Detroit Board o f
Education. The State Legislature in 1969 again proceeded to re
organize not only the structure o f the Detroit Board o f Education,
but the district itself by the enactment o f Act 244, Mich. Pub.
Acts of 1969, (M.C.L.A. §388.171-177) which required that the
Detroit School Board decentralize its administration through the
creation o f regional districts and regional school boards within the
Detroit school district.
In formulating the regional district boundaries within its dis
trict in accordance with the standards imposed by Act 244, the De
troit Board o f Education, aware o f the growing racial isolation
within the Detroit school district, proposed what is now known as
the April 7th Plan, a plan designed to promote integration by re
drawing certain high school district boundaries.
Upon the announcement o f the proposed April 7th Plan, the
Legislature o f the State o f Michigan enacted Act 48, Mich. Pub.
Acts of 1970, (M.C.L.A. §388.171-183) which suspended imple
mentation o f the April 7th Plan. In particular, Section 12 o f Act
48, (M.C.L.A. §388.182) provided as follows:
“ Implementation o f attendance provisions. Sec. 12. The
implementation o f any attendance provisions for the 1970-71
school year determined by any first class school district
board shall be delayed pending the date o f commencement o f
functions by the first class school district boards established
under the provisions o f this amendatory act but such provi
sion shall not impair the right o f any such board to determine
and implement prior to such date such changes in attendance
provisions as are mandated by practical necessity. In review
ing, confirming, establishing or modifying attendance provi
sions the first class school district boards established under
the provisions o f this amendatory act shall have a policy o f
open enrollment and shall enable students to attend a school
of preference but providing priority acceptance, insofar as
practicable, in cases o f insufficient school capacity, to those
students residing nearest the school and to those students de-
6
siring to attend the school for participation in vocationally
oriented courses or other specialized curriculum.”
The last sentence o f that Section had the effect o f stifling two
existing integration policies o f the Detroit Board o f Education.
The first policy was that whenever students were transported to
relieve overcrowding o f schools, they were to be bused to the first
and nearest school where their entry would improve the racial
m ix. (D rach ler D ep osition de bene esse, 46, 49-51), (R.
2873-2880). The second, under the Detroit Board’s open enroll
ment program, was that students desiring to transfer from one
school to another could only do so if the racial mix at the receiv
ing school would be improved. (Drachler Deposition de bene esse,
151), (Ha 8-9).
The enactment and implementation o f Act 48 not only inten
tionally frustrated integration efforts within the Detroit school
system, in order to preserve and maintain a condition o f segrega
tion, but also further evidenced the State o f Michigan’s plenary
power over local school districts
2. THE LITIGATION
As a result o f these actions o f the State, Respondents Ronald
Bradley, et al., filed a complaint seeking a preliminary injunction
to restrain the enforcement o f Act 48, challenging the constitu
tionality o f that legislation and alleging constitutional violations on
the part o f the Detroit Board o f Education and the State of
Michigan, through various state officers at the state level. (2a). The
District Court refused to issue a preliminary injunction, did not
rule on the constitutionality o f Act 48, and dismissed the Gover
nor and Attorney General o f Michigan as parties defendants to this
cause. On the first appeal to the Court o f Appeals for the Sixth
Circuit, that Court held Section 12 o f Act 48 to be an unconstitu
tional interference with the Fourteenth Amendment rights of
Respondents Ronald Bradley, et al., and the dismissal of the
Governor and the Attorney General as parties at that stage of the
proceedings to be improper, 433 F. 2d 897 (6th Cir. 1970). On
the second appeal, the Sixth Circuit held that the implementation
o f an interim desegregation plan was not an abuse o f judicial dis
cretion by the District Court. The case was remanded to the Dis-
7
trict Court with instructions to move as expeditiously as possible.
438 F. 2d 945 (6th Cir. 1971). The trial on the issue o f segre
gation began on April 6, 1971 and continued through July 22,
1971, consuming 41 trial days.
3. THE STATE VIOLATIONS
On September 27, 1971 the District Court issued its Ruling
on Issue o f Segregation (17a) and, as affirmed by the Court o f
Appeals for the Sixth Circuit, found that under Michigan school
law, the State o f Michigan did indeed exercise pervasive control
over site selection, bonding, and school construction, both within
and without the Detroit school system. The District Court also
found that the State o f Michigan failed to implement its enun
ciated policy, as expressed in a Joint Policy Statement on Equality
of Education Opportunity (P.X. 174) and as reaffirmed in the
State Board o f Education’s “ School Plant Planning Handbook” ,
(P.X. 70, at p. 15). This policy required local school boards to
consider the factor o f racial balance in making preliminary deci
sions regarding site selection and school construction expansion
plans.
During the critical years covered by the record in this litiga
tion, the District Court found, and the Court o f Appeals affirmed,
that the State o f Michigan denied the Detroit school district state
funds for pupil transportation, although such funds were readily
made available for students in other districts who lived more than
amileand one-half from their assigned schools. (Ilia 31-35). A pur
pose of this provision for pupil transportation aid in Michigan was
intended to benefit school children residing in rural areas. But, the
fact of the matter is that many o f the suburban school districts
that are Petitioners before this Honorable Court were grand
fathered into the various state transportation aid acts. Asa result,
many previously rural communities suburban to Detroit receive
transportation aid disbursements despite the fact that they are
now heavily urbanized. Although the distances to schools in
Detroit for many o f the school children above the elementary
school level have for many years exceeded the mile and one-half
criterion (R. 2825-6), it was not until 1970 that the State Legis
lature provided that the Detroit school district was eligible to par
ticipate in the Transportation Aid Fund. (Ilia 32). The apparent
8
benefits o f that legislation were totally illusory, for the State
Legislature failed to provide the additional funding necessary to !
provide for disbursements to the Detroit school system and order
ed the State Board o f Education to continue to disburse available >
funds only to those rural and suburban school districts which had
previously been eligible. (Ilia 31). Subsequently, the Michigan
Legislature further mandated that allocations to the school trans
portation aid fund were not to be used for purposes o f desegre- )
gation. (M.C.L.A. §388.1 179).
Recognizing that school districts in the State o f Michigan are
indeed mere agencies or instrumentalities o f the State pervasively
controlled by the State, the District Court, as affirmed by the
Court o f Appeals, found that the actions and inaction of the
Detroit Board o f Education were in fact the actions and inaction j
o f the State o f Michigan.
Specifically, the Courts below found that the Detroit Board
o f Education: (1) maintained optional attendance zones in neigh
borhoods undergoing racial transition and between high school at
tendance areas o f opposite predominate racial composition which f
had the effect o f fostering segregation; (2) built, with the impri- .
matur o f the State Board o f Education and Municipal Finance
Authority, a number o f schools which resulted in continued or
increased segregation; (3) maintained feeder patterns that resulted
in segregation; and (4) bussed black pupils past or away from ,
closer white schools with available space, to black schools. (25a),
(110a).
The Courts below concluded that the natural and probable
consequences o f the actions and inaction on the part o f state offi
cials at all levels combined to reinforce one another so as to foster
segregation, thus violating the Fourteenth Amendment rights of
the school children in the Detroit community.
Although the Detroit Board o f Education maintains th at, as a
local state agency, it had taken no actions which resulted in the
current condition o f segregation forming the basis o f the original
9
complaint, but instead had taken positive steps to promote inte
gration in its schools, it has not appealed the lower court findings
for the following reasons: (1) the consistent findings o f violations
in the Courts below; (2) this Honorable Court’s recent decision in
Keyes; and (3) a recognition by the Detroit Board that it is a mere
instrumentality o f the State under Michigan law and therefore,
regardless o f whether violations were found to have been com
mitted either by state officers at the state level alone, or by state
officers at the local level, the result would be the same. It is in
cumbent upon the State o f Michigan ultimately to remedy the vio
lations.
4. THE REMEDIAL ASPECTS
(a) Due Process Claims.
Following the September 27, 1971 ruling on the constitu
tional violation, Bradley v. Milliken, 338 F.Supp. 582 (E.D. Mich.
1971), the District Court on October 4, 1971 held a pre-trial con
ference during which it ordered the Detroit Board o f Education to
submit its plans for desegregation o f the Detroit school system,
limited to Detroit-only, within sixty days. The Court further
ordered the Petitioners William Milliken, et al. to submit plans o f
desegregation, not limited to Detroit, within one hundred and
twenty days. (43a). A written order to this effect was entered by
the District Court on November 5, 1971. (46a).
As had all prior aspects o f the litigation, the findings and
order of the District Court received wide spread news media cover
age throughout the Detroit metropolitan area and the State o f
Michigan.
It was not until February 10, 1972, some three months sub
sequent to the findings o f the District Court on the issue o f segre
gation and the order for preparation o f plans, that any o f the Peti
tioner school districts filed motions for intervention. (Ia 185, 189,
192, 196). In filing such motions, the Petitioner school districts
indicated that they chose not to intervene earlier because their
interests were not affected by the prior proceedings in this liti
gation. (Ia 190, 196, 201-02). A hearing on the motions for inter
vention was held on February 22, 1972 (Ia 187) and the District
Court took the motions under advisement pending submission o f a
1 0
desegregation plan. On March 7, 1972, the District Court notified
all parties and the Petitioner school districts seeking intervention,
that March 14, 1972 was the deadline for submission o f recom
mendations for conditions o f intervention and the date o f the
commencement o f hearings on Detroit-only desegregation plans.
(Ia 198, 199, 203). Recommendations for conditions o f interven
tion were filed in a letter to the Court on March 14, 1972 by Peti
tioner Grosse Pointe Public School System. That letter stated that
Petitioner Grosse Pointe Public School System would have no
objections to a limitation on the litigation o f matters previously
adjudicated by the District Court. (Ia 201-02). In response to all
o f the recommendations on conditions o f intervention, the Dis
trict Court, on March 15, 1972, granted intervention to the Peti
tioner school districts under conditions which were, for the most
part, in accordance with those suggested to the District Court by
the suburban school districts themselves. (Ia 205-07). Although
intervention was granted on the second day o f hearings on Detroit-
only desegregation remedies, the Petitioner school districts volun
tarily elected not to participate in the proceedings below until
April 4, 1972, the first day o f hearings on metropolitan desegre
gation remedies. (IVa 142-143).
(b) The Complete Ineffectiveness of Detroit-Only Plans.
Following the hearings on Detroit-only desegregation plans,
the District Court found that Plan A proposed by the Detroit
Board o f Education was merely an extension o f the so-called
Magnet Plan, a plan designed to attract children to a school
because o f its superior curriculum. The District Court found that
although the plan proposed at the high school level offered a
“ greater and wider degree o f specialization” it would not be
“ effective to desegregate the public schools o f the City o f Detroit”
because o f the “ failure o f the current model to achieve any appre
ciable success.” (54a). The Court went on to find “ at the Middle
School level, that the expanded model would affect, directly,
about 24,000 pupils o f a total o f 140,000 in the grades covered.’
(54a). It then concluded that “ [i] n this sense it would increase
segregation.” (54a). In addition, Plan A “ [a] s conceded by its
author” was “ neither a desegregation nor an integration plan.
(54a). As to the Detroit Board’s Plan C, the District Court found
11
that it was “ a token or part-time desegregation effort” and
covered “ only a portion o f the grades and would leave the base
schools no less racially identifiable.” (54a).
As to the Detroit-only plan proposed by Respondents
Ronald Bradley, et al., the District Court found:
“ 2. We find further that the racial composition o f the
student body is such that the plan’s implementation would
clearly make the entire Detroit public school system racially
identifiable as Black.
“ 3. The plan would require the development o f trans
portation on a vast scale which, according to the evidence,
could not be furnished, ready for operation, by the opening
of the 1972-73 school year. The plan contemplates the trans
portation o f 82,000 pupils and would require the acquisition
of some 900 vehicles, the hiring and training o f a great num
ber o f drivers, the procurement o f space for storage and
maintenance, the recruitment o f maintenance and the not
negligible task o f designing a transportation system to service
the schools.
* ❖ *
“ 7. The plan would make the Detroit school system
more identifiably Black, and leave many o f its schools 75 to
90 per cent Black.
“ 8. It would change a school system which is not Black
and White to one that would be perceived as Black, thereby in
creasing the flight o f Whites from the city and the system,
thereby increasing the Black student population.” (54-55a).
In summary, the Court found “ that none o f the three plans
would result in the desegregation o f the public schools o f the
Detroit school district.” (55a). The six judge majority o f the Court
°f Appeals sustained the finding o f the District Court that no
Detroit-only plan would result in the desegregation o f the Detroit
school district. (159a-165a). This finding was made against the
backdrop o f the following facts:
12
(1) The City o f Detroit: The geographical boundaries of
the Detroit School District are identical to the geographical boun
daries o f the City o f Detroit, covering an area o f 139.6 square
miles. It contains within its boundaries two entirely separate cities
(and school districts), Hamtramck and Highland Park, and sur
rounds a third city (and school district), Dearborn, on three sides.
It is a fully urbanized area serviced by a network o f five intercon
necting freeway systems and has five excellent surface thorough
fares emanating from the central business district to its northern
border along Eight Mile Road.
The great majority o f its populace lives in privately owned
residences, Detroit having the highest percentage o f private home-
ownership o f any urban center in the United States. The racial
characteristics o f the population o f the City o f Detroit in 1970-71
is reflected in a ratio o f 56% white and 44% black. However, the
racial characteristics o f the student population in the Detroit
school district are reflected in the following statistics:
1960-61: 46% black - 54% white
66% of Detroit’s black students attended
90% or more black schools
1970-71: 64% black - 36% white
75% o f Detroit’s black students attended
90% or more black schools. (A.Ia 14f).
Projections indicate:
1975-76: 72% black - 28% white
1980-81: 81% b la c k -19% white
1990-91: nearly 100% black (20a).
This reflects a present and expanding pattern o f all black
schools in Detroit, resulting in part from State action.
(2) The Detroit Metropolitan Area. The tri-county area,
consisting o f Wayne, the county in which Detroit is located ,
Oakland, and Macomb Counties, covers a land area o f 1,952 square
miles and contains within it, exclusive o f the City o f Detroit, some
60 rather highly urbanized municipalities. It is served by the same
connective freeway system that runs through the City o f D etroit.
13
Currently, a second east-west cross-connecting freeway is
under construction in the vicinity o f Eleven Mile Road, beyond
the northern border o f the City o f Detroit. Thus, travel time from
the central business district o f the City o f Detroit to the outer
fringes o f the urbanized tri-county area does not exceed thirty
minutes. The tri-county area is a Standard Metropolitan Statistical
Area, as defined by the Federal Government. (IVa 33-36). In
1970-71, 44.2% o f the people living in Macomb County worked in
Wayne County, and 33.8% o f the people living in Oakland County
worked in Wayne County. (IVa 37). Approximately 20,000 blacks
who live in the City o f Detroit worked in the City o f Warren, a
suburb in Macomb County (Ila 72). Thus, there exists extensive
interaction among the residents o f the tri-county area.
The entire Detroit metropolitan community, consisting of
the tri-county area, has participated in various cooperative govern
mental services for a period o f years. These include: a metro
politan transit system (SEMTA); a metropolitan park authority
(Huron Clinton Metropolitan Authority); a metropolitan water
and sewer system eminating from the City o f Detroit (Detroit
Metro Water Department); and a metropolitan council o f govern
ments (SEMCOG). (IVa 37-8).
In addition, public educational services are also being pro
vided on a metropolitan cross district basis daily throughout the
Detroit metropolitan community. (79a).
The racial characteristics o f the tri-county metropolitan area
are 18% black and 82% white. Of the total number o f blacks living
in the tri-county area, 87.2% are contained within the City of
Detroit. As a result, the municipalities surburban to the City of
Detroit are almost totally white. Although the reason for the con
centration of blacks in the urban centers is deemed unascertain-
able, there is evidence that it is based upon housing discrimination
and racism. (Ial 56-58) (R. 643).
In the tri-county area there are 86 school districts which bear
little relationship to political boundary lines. (Ia 121-7) (IVa
14
210). Seventeen o f these school districts are immediately adjacent
to the boundaries o f the Detroit school system. (164a). With but
few exceptions, all school districts suburban to the City o f Detroit
have student school populations with racial characteristics which
reflect the virtually all white composition o f their municipalities.
(Ia 121-27).
From 1961-1971 the State o f Michigan permitted the con
struction o f 400,000 additional classroom spaces in these subur
ban school districts, thus building upon the residential racial segre
gation which had developed between the suburbs and the City of
Detroit during that time. (PX P.M. 14, 15).
5. THE COMPELLING NECESSITY FOR A METROPOLI
TAN REMEDY.
Based upon the foregoing mosaic o f facts, the District Court,
as affirmed first by a unanimous panel o f three and then by six
judges o f the Court o f Appeals for the Sixth Circuit, concluded
that the limitation o f a desegregation plan to the City o f Detroit
would result in the further racial identifiability (as black) o f some
o f the schools in the relevant metropolitan community. In this
case, the racial identifiability would extend to all the schools with
in the borders o f the City o f Detroit. In order to properly remedy
the conditions o f segregation found in the Detroit school district,
particularly in light o f the State’s de jure acts o f segregation
extending beyond the boundaries o f the Detroit school district,
the Courts found that within the concepts o f Brown I, Brown II,
Green, and Swann, it was proper to consider a remedy directed to
the relevant community — the Detroit metropolitan area.
In approaching the metropolitan hearings, the District Court
faithfully adhered to the guidelines enunciated by this Honorable
Court in: (1) determining the violation (Brown I); (2) using prac
tical flexibility (Brown II); (3) formulating an effective desegre
gation remedy (Green); (4) which would prevent resegregation
(Monroe); (5) by utilizing the remedial tools o f a flexible ratio,
reflective o f the relevant community as a starting point, and rea
sonable transportation times and distances (Swann).
15
Although plans extending to the outermost boundary lines o f
the tri-county area were proposed (IVa 174-177, IVa 222-223),
the District Court, following the guidelines o f this Honorable Court,
contracted the metropolitan desegregation area to within reason
able distances and travel times, but only so far as to insure that the
plan would effectively remedy the violations found and prevent
resegregation. (98a-102a). Furthermore, the remedy entailed a
minimum o f interference with existing administrative state agen
cies. No restructuring o f state government, nor mergers or consoli
dations o f school districts were ordered. (104a-105a).
The District Court directed a panel o f experts, including rep
resentatives o f all local school districts and the State Board o f Ed
ucation, to develop finalized details o f the desegregation plan, sub
ject to further review by all parties and the Court. (99a-100a) (la
267-273). However, the District Court has not completed its work,
due to the appeals filed in this cause.
The Court o f Appeals for the Sixth Circuit has affirmed the
findings of the District Court as to :(1) the constitutional violations
by the State o f Michigan; (2) the ineffectiveness o f a Detroit-only
plan in desegregating the Detroit school district; and (3) the appro
priateness of. considering a metropolitan remedy. However, the
case has been remanded to the District Court to establish the
boundaries o f an effective remedy and to provide all potentially
affected school districts an opportunity to participate in that
formulation. (172a-179a).
Much time has passed since this litigation was initiated in the
District Court below, yet much remains to be done.
16
SUMMARY OF ARGUMENT
The Michigan Constitution as interpreted by the Supreme
Court o f Michigan and as implemented by legislative enactment
and the rules o f the Michigan State Board o f Education clearly
establishes that the State o f Michigan pervasively controls elemen
tary and secondary education and in so doing has created the local
school districts as its instrumentalities and agents. The State’s per
vasive control o f education is evidenced by such examples as its
elimination o f local school districts without voter approval; its
transfer o f property from one district to another without local
consent; its power to remove local Board members; and its omni
present participation in the day-to-day operation o f local school
districts.
The Detroit Board o f Education submits: (1) that the Sixth
Circuit order allowing Petitioner school districts to participate in
hearings on the propriety o f a metropolitan plan is more than
Petitioner school districts are entitled to since they are not “ per
sons” for the purpose o f Fifth Amendment due process; (2) that
Petitioner school districts, due to their own inaction, are estopped
from claiming a denial o f due process; (3) that Fed. R. Civ. P.
19 does not require Petitioner school districts’ joinder since they
have no substantial interest to protect and are not necessary for
complete relief; and, (4) that Petitioner school districts could
not contribute anything substantial to the District Court rulings
affirmed by the Sixth Circuit.
The Courts below found that the State o f Michigan, by its
own actions and inaction, violated the Fourteenth Amendment
rights o f Detroit school children, thereby causing unconstitutional
racial isolation in the Detroit school system. The State committed
the following acts: (1) it permitted selection o f certain school
construction sites for the purpose o f racial isolation; (2) it failed
to provide transportation funds for Detroit school children; (3)
it limited the bonding rights o f the Detroit school district; (4) it
enacted legislation that blatantly prevented the Detroit Board of
Education from integrating the Detroit school district; and, (5)
it caused black school children from a black suburban school
district, without a high school, to be transported into pre
dominantly black Detroit high schools, thereby bypassing nearer
all white suburban high schools.
17
In addition, the Courts below found that the Detroit Board
of Education committed acts which caused segregation. As an in
strumentality o f the State o f Michigan, the Detroit Board o f Edu
cation is bound by the actions o f the State. Likewise the Detroit
Board’s actions are actions o f the State. Thus, the Courts below
found that whether the constitutional violations were committed
by the State alone, or by the State acting through, or in conjunc
tion with, the Detroit Board o f Education, the constitutional
violations were committed by the State o f Michigan. For these
reasons it is the State’s responsibility to implement an effective
constitutional desegregation remedy.
A desegregation remedy limited to the boundaries o f the City
of Detroit is not effective because it cannot eliminate “ root and
branch” the vestiges o f unconstitutional segregation. Any Detroit-
only desegregation plan would leave the Detroit schools racially
identifiable and perceived as black. Such a plan would not esta
blish “just schools” .
P olitica l boundary lines cannot supercede Fourteenth
Amendment rights. In the instant case the relevant community for
an effective desegregation plan is the metropolitan Detroit com
munity -- a community that is socially, economically, and politi
cally interrelated. There need not be a finding o f de jure acts on
the part o f the Petitioner school districts to justify their participa
tion in a desegregation remedy. State action has caused the consti
tution violation and State created and State controlled school dis
tricts can participate in establising an effective remedy.
A metropolitan desegregation plan provides a flexible racial
ratio, is educationally sound and logistically practical. Present
state law, without the necessity for any school district consolida
tion, permits State implementation o f a metropolitan desegrega
tion plan. Moreover, the geography o f metropolitan Detroit facili
tates the transportation o f school children across school district
lines in a way that provides reasonable travel times and distances.
In many cases cross district transportation would be shorter than
present intra-district transportation. Cross district transportation
now exists for purposes other than desegregation.
1 8
The District Court is not prohibited from ordering the State
Defendants to implement a desegregation remedy under the
Eleventh Amendment. Eleventh Amendment immunity is not an
impediment to judicial action whenever the protection o f funda
mental constitutional rights is involved.
Respondents Ronald Bradley, et al. have not sought to enjoin
any Michigan statute o f statewide application on the ground that
such statute is unconstitutional. For this reason a three judge
court is not required.
19
I .
THE STATUS OF SCHOOL DISTRICTS UNDER MICH
IGAN LAW, AS INSTRUMENTALITIES OF THE STATE,
WITH RESPONSIBILITY FOR EDUCATION VESTED
SOLELY IN THE STATE, MAKES THE STATE RESPON
SIBLE FOR PROVIDING AN EFFECTIVE DESEGREGA
TION REMEDY.
In school segregation cases, this Honorable Court has consis
tently held that actions o f local school boards are actions o f the
State. Cooper v. Aaron, 358 U.S. 1, 16-17 (1958). In Michigan,
this axiom is o f particular importance because, under Michigan
law, both from a legal principle and a practical standpoint, local
school districts are mere instrumentalities and agents o f the State,
operating under pervasive state control.
A. The Michigan Constitutional History of State Control
Over Education.
Article III o f the Northwest Ordinance o f 1787, governing the
Territory o f Michigan, provided in part:
“ Religion, morality and knowledge being necessary to good
government and the happiness o f mankind, schools and the
means o f education shall forever be encouraged.”
With this genesis, Michigan’s four Constitutions have clearly
established that the public school system in Michigan is solely a
state function, pervasively controlled by the state.
The education article of the Constitution o f 1835, Article X,
provided in part:
“The Legislature shall provide for a system o f common
schools . . . .” (Section 3).
“The governor shall nominate, and by and with the advice
and consent of the legislature, a joint vote, shall appoint a
superintendent o f public instruction, whose duties shall be
prescribed by law.” (Section 1).
2 0
The education article o f the Constitution o f 1850, Article
XIII, provided in part:
“ The legislature shall . . . provide for and establish a system
of primary schools . . . (Section 4).
“ The superintendent o f public instruction shall have general
supervision o f public instruction, and his duties shall be pre
scribed by law.” (Section 1).
Article XIII, Section 9 o f the Constitution o f 1850 also pro
vided for an elected State Board o f Education whose duties were
confined to “ the general supervision o f the state normal schools
and its duties shall be prescribed by law.”
The education article o f the Constitution o f 1908, Article XI,
provided in part:
“ The legislature shall continue a system o f primary
schools . . . .” (Section 9).
“ A superintendent o f public instruction shall be elected . . .
who shall have general supervision o f public instruction in the
state. He shall be a member and secretary o f the state board
o f education.” (Section 2).
Thus, for the first time, Michigan provided that the Superin
tendent o f Public Instruction would be elected by the voters
rather than appointed by the Governor. As in the preceding Con
stitution, Article XI, Section 6 o f the 1908 Constitution con
tinued the provision for an elected State Board o f Education with
limited authority, to wit: to supervise . . . “ the state normal college
and the state normal schools.”
B. The Consistent Michigan Supreme Court Interpretation
That Local Districts Are Mere Instrumentalities and
Agents of the State.
In interpreting the education provisions of the Constitution
2 1
of 1850, the Michigan Supreme Court clearly and unequivocally
stated that “The school district is a state agency. Moreover, it is of
legislative creation___” Attorney General, ex rel. Kiesv. Lowrey,
131 Mich. 639, 644, 92 N.W. 289, 290 (1902). Specifically, in
Lowrey, the Michigan Supreme Court held that the legislature o f
the State o f Michigan properly consolidated four school districts
without a vote o f the electorate in the merged school districts and
could transfer the property, as well as the students and teachers, in
those districts to the newly created consolidated district. The clear
import o f the Lowrey decision and the breadth o f the Constitu
tion of 1850 was recognized by Michigan Supreme Court Justice
Grant in his dissent, 131 Mich, at 652, 92 N.W. at 293:
“ If this act be sustained, it must follow that the legislature
can absolutely deprive the inhabitants o f these school
districts o f the right to locate their sites and to control their
property for school purposes in such manner as they may
deem for their best interests. It must follow that the legislature
can make contracts for every school district in the State with
teachers, can fix the amount each district shall raise by tax,
and can determine how much each district must spend in
erecting a schoolhouse . . . .”
Again, interpreting the Constitution o f 1850, the Supreme
Court of Michigan in Attorney General v. Detroit Board o f Educa
tion, 154 Mich. 584, 590, 108 N.W. 606, 609 (1908), adopted the
following trial court language which read:
“ Education in Michigan belongs to the State. It is no part of
the local self-government inherent in the township or munici
pality, except so far as the legislature may choose to make it
such. The Constitution has turned the whole subject over to
the legislature . . .
In interpreting Article XI, Section 9 o f the Michigan
Constitution o f 1908, the Supreme Court o f Michigan held:
“ Fundamentally, provision for and control o f our public
school system is a State matter, delegated to and lodged in
the State legislature by the Constitution in a separate article
entirely distinct from that relating to local government. The
2 2
general policy o f the State has been to retain control of its
school system, to be administered throughout the State
under powers independent o f the local government with
which, by location and geographical boundaries, they are
necessarily closely associated and to a greater or lesser extent
authorized to co-operate. Education belongs to the State. It
is no part o f the local self-government inherent in the town
ship or municipality except so far as the legislature may
choose to make it such.”
MacQueen v. City Commission o f the City o f Port Huron,
194 Mich. 328, 336, 16 N.W. 628, 629 (1916).
“ We have repeatedly held that education in this State is not a
matter o f local concern, but belongs to the State at large.”
Collins v. Detroit, 195 Mich. 330, 335-336,161 N.W. 905,
907 (1917).
“ The legislature has entire control over the schools of the
State subject only to the provisions above referred to (i.e.
state constitutional provisions). The division o f the territory
o f the State into districts, the conduct o f the school, the
qualifications o f teachers, the subjects to be taught therein
are all within its control.”
Child Welfare Society o f Flint v. Kennedy School District,
220Mich. 290, 296, 189 N.W. 1002, 1004 (1922).
Finally, pursuant to Article XI, Section 9 o f the 1908
Michigan Constitution, the Supreme Court o f Michigan held that
the State Board o f Education could approve, without local con
sent, a partial transfer o f property from one local school district to
another and in so doing stated:
“ Control o f our public school system is a State matter delega
ted and lodged in the State legislature by the Constitution.
The policy o f the State has been to retain control ot its
school system, to be administered throughout the State
under State laws by local State agencies. . . . ” Lansing School
District v. State Board o f Education, 367 Mich. 591, 595,
116 N.W.2d 866,868 (1962).
23
So ingrained is the axiom o f pervasive state control o f educa
tion in Michigan, with local school districts mere agents o f the
state, that the Michigan Supreme Court in Lansing also held:
“ We do not believe plaintiff (the school district) is a proper
party to raise the question of whether or not its residents
have the right to vote on the transfer-----Plaintiff school dis
trict is an agency o f the State government and is not in a
position to attempt to attack its parent. . . Lansing School
District v. State Board o f Education, 361 Mich. 591, 600,
116 N.W. 2d 866, 870 (1962)
The present Constitution o f the State o f Michigan was
adopted in 1963. Article VIII thereof is the education article and
provides in part:
“The legislature shall maintain and support a system o f free
public elementary and secondary schools as defined by law.
. . . (Section 2).
State board o f education; duties. Leadership and general
supervision over all public education, including adult
education and instructional programs in state institutions,
except as to institutions o f higher education granting bacca
laureate degrees, is vested in a state board o f education. It
shall serve as the general planning and coordinating body for
all public education, including higher education, and shall
advise the legislature as to the financial requirements in con
nection therewith.
“Superintendent o f public instruction; appointment, powers,
duties. The state board o f education shall appoint a superin
tendent o f public instruction whose term o f office shall be
determined by the board. He shall be the chairman o f the
board without the right to vote, and shall be responsible for
the execution o f its policies. He shall be the principal execu
tive officer o f a state department o f education which shall
have powers and duties provided by law. . . .” (Section 3).
The Constitutions o f Michigan (1835, 1850, 1908, 1963)
clearly made elementary and secondary education in Michigan the
24
sole function o f the State, controlled by the State. The first three
Constitutions o f Michigan, 1835, 1850 and 1908 provided for a
Superintendent o f Public Instruction who was responsible for
supervising all education in the State o f Michigan. In 1835 and
1850 this Superintendent was appointed. In 1908 he was elected
as a constitutional officer.
The only change in this constitutional scheme o f sole state
function and pervasive state control o f education in Michigan
made by the Constitution o f 1963, was to vest the State Board of
E ducation with the power to supervise all elementary and
secondary education in Michigan and to appoint the Superinten
dent o f Public Instruction as its chief administrative officer. 2
Constitutional Convention Official Record 3396 (1961).
Consistent with its past decisions in interpreting the educa
tional article o f Michigan’s previous Constitution, the Michigan
Supreme Court, in interpreting Article VIII, Section 3, o f the
1963 Constitution, stated in a “ per curiam” opinion:
“ It is the responsibility o f the State board o f education to
supervise the system o f free public schools set up by the legis
lature . . . . ” Welling v. Livonia Board o f Education, 382 Mich.
620, 624, 171 N.W. 2d 545, 546 (1969).
The concurring opinion spelled out the change from the
Constitution of 1908 to the Constitution o f 1963 as it described
the transfer of authority over the school system from the legis
lature to the State Board o f Education:
“ By the Constitution o f 1963 . . . the framers proposed and
the people adopted a new policy for administration ol the
system. Now the State Board of Education . . . is armed and
charged exclusively with the power and responsiblity of
administering the public school system which the legislature
has set up and now maintains pursuant to Section 2 o f the
Eighth Article. By Section 3 o f the same Article, the board
has been directed — not by the legislature but by the people
- to lead and superintend the system and become, exclu
sively, the administrative policy-maker th ereo f.... 382
Mich, at 625, 171 N.W. 2d at 546-547.
25
Thus, the Michigan Supreme Court has consistently inter
preted all education articles in all o f Michigan’s four Constitutions
as meaning that, in Michigan, education is solely a state function,
pervasively controlled by the State and that local school districts
are mere administrative conveniences or agents o f the State.
This very Court recognized this cardinal axiom o f Michigan
School law when it, too, affirmed the right o f the State Legislature
to consolidate four Michigan school districts and transfer the pro
perty thereof, without vote o f the citizens. Attorney General ex
rel. Kies v. Lowrey, 199 U.S. 233 (1905) affirming 131 Mich. 639,
92N.W. 298 (1902). 11 ]
Nor is this axiom o f Michigan law a judicial fantasy o f the
Courts. A study prepared for the 1961 Michigan Constitutional
Convention, I2! entitled “ Elementary and Secondary Education
and the Michigan Constitution,” noted that Michigan’s first consti
tutional article on education resulted in:
“ . . . the establishment o f a state system o f education in con
trast to a series o f local school systems.” Michigan Constitu
tional Convention Studies, at 1 (1961).
And it is noted that having this background, the Constitu
tional Convention o f 1961 did not change the Michigan Consti
tution on this point, but only reinforced the legal concept and
practice o f pervasive state control o f education in Michigan.
C. The Practical Examples of Pervasive State-Control In
cluding State Control of Day-to-Day Operations.
Though the Michigan Legislature has established local school
districts, these districts are mere agents and instrumentalities o f
the state, as evidenced by the pervasive state control in many
areas, including their existence; their finances; their day-to-day
operations.
^ Discussed at page 21, supra.
[21 The work o f the 1961 Convention resulted in the adoption o f the Con
stitution of 1963.
2 6
1. Consolidations, Mergers and Annexations: The pervasive
control o f the State o f Michigan over its agents (the local school
districts) is illustrated by the long and currently accelerating his
tory o f school district consolidations, mergers and annexations in
Michigan. In 1912 the state had 7,362 local school districts. As of
June, 1972, the number o f local districts had been reduced by
deliberate state policy to 608. ! 3 ! Ann. Reports, 1970-71, Michi
gan Department o f Education, at 17; Michigan Department of
Education, Michigan Educational Statistics, at 15 (Dec. 1972).
In Michigan, the Superintendent o f Public Instruction and
the State Board o f Education can and have consolidated and
merged school districts without the consent o f the merged school
districts and without the consent o f the electors in the districts
involved, transferring both property and students to the receiving
district.!4 ̂ Here are some examples where school district consoli
dations have been ordered by the State o f Michigan without the
vote o f the electorate:
(a) Four districts in Hillsdale county were merged pursuant
to Local Act 315, Mich. Pub. Acts o f 1901 as approved
in Attorney General ex rel. Kies v. Lowrey, 131 Mich.
639, 92 N.W. 289 (1902), aff'd, 199 U.S. 233 (1905).
(b) The Sumpter school district in Wayne County (the
county in which the Detroit school district is located)
was dissolved in 1968 by action o f the State Board of
Education and its schools, property and students were
divided among four other school districts in three dif
ferent counties, to w it: Wayne County, Washtenaw
County and Monroe County. Minutes o f State Board of
Education, January 9, 1968; Act 239, Mich. Pub. Acts
o f 1967 (M.C.L.A. §388.711 et seq.).
(c) In 1969, the Nankin Mills School District in Wayne
County was eliminated b y the State Board o f E du cation
f3 ! Just during the period 1964-68, 700 school districts had been abol
ished. Michigan Department of Education, Michigan Educational Statistics
(Dec. 1972)
14 1 This, of course, is in addition to mergers, consolidations and annexa
tions by local voter consent (M CLA §340 .341 et seq).
27
and its property, schools, students and teachers were
divided between the Wayne and Livonia School District.
Both districts are in the current desegregation zone.
Minutes o f State Board o f Education, April 23, 1969. Act
239, Mich. Pub. Acts o f 1967 (M.C.L.A. § 388.711, et
seq.
In the last four years the State Legislature has passed legisla
tion providing the emergency financial relief to nearly bankrupt
school districts on the condition that if the districts did not abide
by the terms o f the special legislation they would be merged with
other school districts, without local vote, by the State Board o f
Education. These districts were:
(a) Inkster school district in Wayne County, Act 32, Mich.
Pub. Acts o f 1968 (M.C.L.A. § 388.201 et seq. ).
(b) Baldwin school district in northern Michigan, Act 255,
Mich. Pub. Acts o f 1972, (M.C.L.A. § 388.211 et seq.).
(c) Harper Woods school district in Wayne County adjacent
to Detroit, Act 12, Mich. Pub. Acts o f 1973 (M.C.L.A.
§388.251 et seq.).
Whether the mergers and consolidations are permissive (vote
of the electorate) or mandatory (without vote o f the electorate),
the extensive mergers and consolidations in Michigan, including
the recent mandatory mergers in Wayne County, Michigan, estab
lish that the local districts are mere instrumentalities and agents o f
the state whose existence can be altered or destroyed by its crea
tor, the state o f Michigan. There is no greater control. This clearly
establishes that, at least in Michigan, school district boundary lines
are not sacrosanct.
2. Political Boundary Lines. With some exceptions, Detroit
being the most notable, school district lines in Michigan do not
follow either county or municipal boundary lines. For example a
number o f Petitioner school districts cross municipal boundary
2 8
lines, and several cross county lines, t51
3. The Transfer o f Property. The Michigan view that local
school districts are state agents, pervasively controlled by the
State, is no better illustrated than by the State’s frequent transfer
o f property and students without local consent.
The School Code o f 1955 authorizes the transfer o f property
between school districts. M.C.L.A. §§340.461-468. Petitions for
such transfers are made to the intermediate school boards, but the
statute explicitly provides that the State Board o f Education shall
act as an appellate body having final authority to confirm, modify,
or set aside orders for the transfer o f property from one district to
another. M.C.L.A. §§340.467, §388 .1010(c). By its own count,
the State Board o f Education has acted to approve or reject trans
fers involving “ hundreds o f parcels o f land” affecting the geo
graphic composition o f local school districts in Michigan. Minutes
o f the State Board o f Education, Oct. 15, 1969, 191. Available
statistics show that during 1969-70, for example, 45 property-
transfer hearings were held and that during 1970-71, 32 property
transfer hearings were held. Michigan Department o f Education,
Ann. Report, 1969-70, at 42; Michigan Department o f Education,
Ann. Report, 1970-71, at 17. Each o f these decisions by the State
Board o f Education involves a determination whether boundary
lines o f a local school district shall be altered, and each decision is
finalized at the state level by the state agency.
When hearing property transfer appeals, the State Board of
Education has frequently overruled the decisions made at the local
level. For example, on June 24, 1970, the State Board o f Educa-
[5] At least the following Petitioner school districts are not coterminous
with political boundary lines of any municipality or county, to wit: Brandon
Schools, Cherry Hill School District, Chippewa Valley Public School District,
Crestwood School District, Dearborn Heights School District No. 7, Flat Rock
Community Schools, Lakeshore Public Schools, Lakeview Public Schools, the
Lamphere Schools, Melvindale-North Allen Park School District, Allen Park
Public Schools, School District of North Dearborn Heights, Oxford Area
Community Schools, Redford Union School District No. 1, Richmond Com
munity Schools, South Lake Schools, Warren Consolidated Schools, Warren-
Woods Public Schools, Wayne-Westland Community Schools, Grosse Pointe
Public Schools.
29
tion transferred certain property from the Benton Harbor City
School District to the Coloma Public School District. The record
shows that this decision o f the State Board o f Education was made
even though both the Benton Harbor Board o f Education and the
Berrien Intermediate Board o f Education had recommended that
the property not be transferred. Minutes o f the State Board o f
Education, Feb. 10, 1971.
This power to transfer property on the part o f the State
Board o f Education, even over the objection o f the local school
board, has been affirmed by the Michigan Supreme Court. Lansing
School District v. State Board o f Education, 367 Mich. 591, 116
N.W. 2d 866 (1962). The power o f the State Board is so absolute
that the Michigan Supreme Court has also recognized that there
are no appeals from the decision o f the State Board o f Education
to transfer property from one local school district to another.
Imlay Township District v. State Board o f Education, 359 Mich.
478, 102 N.W. 2d 720 (1960).
In short, under Michigan law local districts must do what the
State orders them to do.
4. The State’s Absolute Power o f Local Board Removal and
To Compel Action. The state control o f education in Michigan is
further evidenced by the ultimate authority o f the State Board o f
Education and the State Superintendent o f Public Instruction over
local school boards:
A. Power o f Removal—
The Superintendent o f Public Instruction and the State
Board o f Education have the power to remove from
office any member o f the school board who refuses or
neglects to discharge any o f the duties o f his office.
M.C.L.A. §340.253.
B. Power to Compel—
The State Board o f Education has a statutory duty and
the power to compel local school board officers to com
ply with all- laws relating to schools and to refrain from
constitutional violations. M.C.L.A. §340.252. Thus, the
State Board o f Education is authorized to seek man
damus relief in the courts to compel boards o f educa
tion to perform their clear legal duties. Johnson v.
Gibson, 240 Mich. 515, 215 N.W. 333 (1927).
30
C. Power to A ct—
The Superintendent o f Public Instruction and the State
Board o f Education are obligated to do all things neces
sary to promote the welfare o f the public schools and to
provide proper educational facilities for the youth of
the state. M.C.L.A. §340.252.
5. State Financing. The State o f Michigan pervasively con
trols education by contributing an average o f 34% o f the operating
budgets o f the 54 school districts included in the original metro
politan desegregation plan. In eleven o f the 54 districts such con
tributions exceed 50% and in eight more they exceed 40%. 161
State aid is appropriated from the General Fund revenues raised
through statewide taxation and is distributed annually through the
local school districts under a formula devised by the Legislature.
See e.g., Act 134, Mich. Pub. Acts o f 1971 (M.C.L.A. §388.611).
Though the local school districts also obtain funds from the
assessment o f local property, the ultimate authority in insuring
equalized property valuations throughout the State is the State
Tax Commission. M.C.L.A. §§209.101 et seq., 211.34, 211.148.
The State’s duty to equalize is required by the Michigan Con
stitution, Article IX, Section 3. This “ State equalized valuation”
serves as the basis for calculating local revenue yields. See, Michi
gan State Department o f Education, Ranking o f Michigan Public
High School - School Districts by Selected Financial Data, 1970
(Bulletin 1012, 1971). I71
6. Withhold State Funds. The state’s pervasive control over
school finances in Michigan could be illustrated no better than by
the fact that the State Board o f Education and Superintendent of
Public Instruction may withhold state aid for failure to operate
the minimum school year. M.C.L.A. §340.575. As a result, in
l%] State Aid Chart, Exhibit I, infra, at 126.
17 1 The Bursley Bill, Act 1, Mich. Pub. Acts of 1973 (M CLA §340.681),
alters the distribution scheme significantly. Pursuant to this enactment, Mich
igan is now on a “ power equalizing system.”
31
1970, funds were withheld from the City o f Grand Rapids School
District.
7. The Pervasive State Control o f Day-to-Day Operation o f
Local School Districts. Though Petitioners, Allen Park and Grosse
Pointe would assert that the local boards o f education in Michigan
are operationally autonomous, this is not only misleading but
plainly erroneous under Michigan law. Specific powers o f local
school district authorities relating to day-to-day management, in
terms o f control, are restricted by the State as follows:
A. Local districts may hire and contract with teachers, pro
vided the provisions o f statutes concerning public employees rela
tions and the provisions of statutes and rules concerning teacher
certification and teacher tenure are satisfied. f9l
B. Local districts may determine courses o f study, provided
these courses include: civics, constitutionalism, health and phy
sical education, communicable diseases, physiology and hygiene,
the humane treatment o f animals and birds, and drivers’ educa
tion. I10! If sex education is taught, Department o f Education
guidelines must be observed.!111
C. A local district may determine the length o f its school
term, provided it conducts 180 days o f student instruction per
school year, as defined by the State Board o f Education, unless
permission to deviate from the rule is granted by the State Board
of Education. I *2] *
̂ Michigan School Board Journal (March, 1970). For Attorney General
Opinions holding that State aid may be withheld by the State Board of Edu
cation from school districts for hiring uncertified teachers, defaulting on
State loans and for other reasons, see,Op. Atty. Gen. No. 8 8 0 ,19 49 -1 950 Re
port of the Attorney General 104 (January 24, 1949, Roth); No. 2333 , 1955
Report of the Attorney General 561 (October 20, 1955, Kavanaugh); No.
4097, 1961-62 Report of the Attorney General 553 (October 8, 1962,
Kelley).
|91 MCLA §34 0 .5 6 9 .
|10! MCLA § § 3 8 8 .3 7 1 ,.3 6 1 , .78 1 -.782 , 257.811 (c).
j111 MCLA § 340 .789 .
12i MCLA §3 4 0 .5 7 5 .
32
D. A local district may arrange for the transportation of
students, but to be eligible for reimbursement from the State the
local district must have its bus routes, equipment, and drivers
approved by the State Board o f Education. 1131
E. A local district may adopt only textbooks listed with the
Superintendent o f Public Instruction. t14 *l
F. A local district may suspend or expel from school a pupil
guilty o f a gross misdemeanor or persistent disobedience, provided
the local school board conforms with procedural safeguards pro
mulgated by the State Board o f Education. Op. Atty. Gen. No.
4705 (July 7, 1970).
The State Board o f Education, operating under its rule-
making authority, has direct control over the day-to-day conduct
o f school affairs in Michigan. State statutes require a school dis
trict to conduct a minimum o f 180 days o f student instruction per
school year. M.C.L.A. §340.575. The State Board o f Education has
determined that the 180 days shall consist o f 900 clock hours in
each school year and that no school district may operate on a
reduced schedule without prior approval o f the State Board of
Education. R340.14, Michigan Administrative Code, 1970-71
A.A.C.S. As shown earlier in this Brief, failure to comply with the
state requirement means a loss in state school aid to the dis
trict. During the 1970-71 school year, the State Board of
Education granted exceptions to the statutory requirement by
permitting at least 13 districts to operate on reduced schedules
without suffering a loss in state aidJ16! During the school year,
the local school boards’ administrative flexibility is further re-
[13] MCLA §388.1 171.
D 4 1 MCLA §34 0 .88 7(1 ).
I * 3 ) See discussion regarding Grand Rapids, supra, at 30-31.
[16] Minutes o f the State Board of Education, Aug. 11, Aug. 25, Aug. 26,
and Nov. 24, 1970.
33
stricted by the limitations imposed by the State Board o f Educa
tion as the Board enforces its rules as to state aid payments, t17 *!
child count, HS} the transportation code (including audits o f
reports o f routes and mileage and the qualification o f school
bonds), 119 20 *1 financial reports, [20] teacher certification and en
dorsement o f counsellors,121] teacher tenure, 122] drivers’ educa
tion, 123] remedial reading programs,[24] vocational educa
tion, 125] neighborhood education centers, [26 ̂ interscholastic
athletics, [27] personality tests, [28] education o f pregnant stu
dents, [29] eye protective devices, [30] and school lunches. [311
The failure o f a local school board to comply with the State
Board’s rules can result in loss o f state aid, special funding, loss o f
accreditation or removal from office o f local board members.
8. Crossing o f School District Lines. The State’s control o f
education is no more evident than the way the State o f Michigan
handles special education . In metropolitan Detroit alone,
numerous children are transported across school district lines for
the purposes o f special education. (M.C.L.A. § § 340.330-330(a));
(also see 79a-80a).
[1 7 1 R 383. 1 5 1 -R 383.156, R 38 3 .201-R 388 .205 , R 388 .221-R 388 .235 ,
R 388 .25 4 - R 3 8 8 .2 5 6 , R 3 8 8 .4 0 1- R 3 8 8 .4 0 4 , R 3 8 8 .4 1 1 -R 3 8 8 .4 1 6 ,
R388.501-R388.506, R 388 .5 51 -R 38 8 .5 57 , Michigan Administrative Code.
R 340.1 -R 340.17, Michigan Administrative Code.
['91 R 340.351-R 340.355 , Michigan Administrative Code.
[20] R 340.35i-R 340.355, Michigan Administrative Code.
l2 ![ R 390.1101-R 390.1 167, R 390 .1 301 -R 3 90 .130 5 , Michigan Administra
tive Code.
[22 * *1 R 38.71-R 38.123, Michigan Administrative Code.
l23' R 340.351-R 340.436 , R 38 8 .301-R 388 .339 . Michigan Administrative
Code.
1241 R 388.251-R 388.256 , Michigan Administrative Code.
[25[ R 395.362-R 395.363, Michigan Administrative Code.
2̂f^ R 388.601-R 388.604 , Michigan Administrative Code.
[~7[ R 340.89-R 340.1S4, Michigan Administrative Code.
R 34 0 .1 101 -R 3 40 .1107, Michigan Administrative Code.
2̂9[ R 340.11 2 1 -R 3 4 0 .1 124, Michigan Administrative Code.
[30] R34o.i 301-R 340.1 302, Michigan Administrative Code.
[311
R 340.601-R 340 .605 , Michigan Administrative Code.
34
9. State Control vis-a-vis the Detroit Board. Perhaps the
court only has to look at the experience o f the Detroit Board of
Education to realize how persuasive State control is over local
school districts:
A. The State o f Michigan has told the Detroit Board how to
handle its finances and what millage to levy. Act 1, Mich. Pub.
Acts o f 1973 (M.C.L.A. §340.689); Act 2, Mich. Pub. Acts of
1973 (M.C.L.A. §388.1 101 eh seq.)
B. Prior to 1969, on five occasions, the State Legislature
changed the internal structure o f the Detroit Board o f Education.
Act 70, Mich. Pub. Acts o f 1962; Act 233, Mich. Pub. Acts of
1869; Act 314, Mich. Pub. Acts o f 1 881; Act 310, Mich. Pub. Acts
o f 1889; Act 251, Mich. Pub. Acts o f 1913.
C. By passing Act 244, Mich. Pub. Acts,of 1969, the State
Legislature told the Detroit Board that it must decentralize.
D. When the Detroit Board o f Education, in a day-to-day
operation, attempted to change student attendance zones for the
purpose o f integration, the State Legislature suspended the day-to-
day decision o f the Detroit Board on this point. In doing so, the
State legislature also suspended the Detroit Board’s efforts at in
tegration by only busing from over-crowded schools if said busing
would further integration, and only permitting transfers if the
transfers would further integration. §12 o f Act 48, Mich. Pub.
Acts o f 1970 (M.C.L.A. § 388.171 et seq. ).
E. Not only did § 12 o f Act 48, interfere with the day-to-day
operations o f the Detroit Board, but the Act also shortened the
existing terms o f elected Board members M.C.L.A. §388.171 et
seq.
References to local control and the day-to-day operation of
the school board made by Petitioners Allen Park Public Schools, et
al. and Grosse Pointe Public School System, in their Briefs ignore
the basic educational facts o f life as they exist in Michigan and are
an attempt to mislead this Honorable Court. Petitioner school
districts fail to challenge the fact o f pervasive state control in
Michigan, even in day-to-day matters, in primary and secondary
education, and conveniently ignore the following:
35
1. The Superintendent o f Public Instruction and the State
Board o f Education can remove local board members without elec
tion.
2. School districts can be consolidated without consent o f
the local electorate.
3. Property can be transferred from district to district
without consent o f the local districts.
4. School districts in many cases are not coterminous with
other political boundary lines.
5. There is massive state financial aid.
6. Statutes and State Board o f Education regulations govern
many o f the day-to-day operations o f local schools.
This Brief only discusses Michigan school law. Although some
other states and commonwealths have similar state powers, many
do not. For example, in Virginia, the Virginia State Board of
Education does not have the power to remove local school board
members. Prior to the 1971 Virginia Constitution, the Virginia
Board of Education could designate two or more counties or cities
as a school division, but could not consolidate the school boards
ot these political units without their consent. The Constitution o f
Virginia, Section 132, Section 133 (1902). During this period the
Virginia Board o f Education effected nine consolidations o f
county districts, but the consolidations were totally ineffective
since the school boards refused to be consolidated.See, Hulihen W.
Moore, In Aid o f Public Education: An Analysis o f the Education
Article of the Virginia Constitution o f 1971, 5 U. Richmond L. Rev.
263, 287 (1971); Report o f the Commission on Constitutional
Revision, 266 (1968). Even under the 1971 Constitution, the Vir
ginia Board o f Education is not given the absolute power to con
solidate. In short, neither under the old or new Constitutions o f
Virginia may the Virginia Board o f Education, acting alone, con
solidate several school districts into a single system under the con
trol ot a single board. In Virginia the school districts are coter
minous with political boundary lines. In Virginia, the Virginia
Board of Education cannot transfer property from one district to
another district.
36
As between Michigan and Virginia there are considerable dif
ferences in the amount o f state control. However, there is no
question about the pervasive state control o f education in Michi
gan. The Court o f Appeals for the Sixth Circuit correctly applied
Michigan school law, recognizing the pervasive state control over
elementary and secondary education in the State o f Michigan.
D. Pervasive State Control Means State Responsibility for
Violations and Remedies.
The pervasive state control in Michigan has four significant
results:
1. Because o f pervasive state control, state actions and in
actions have resulted in violations o f the constitutional rights of
the 280,000 children o f the City o f Detroit.
2. The de jure actions o f the Detroit Board found by the
Courts below are state actions because the Detroit Board is not
only an instrumentality and agency o f the state under Michigan
law, but is a pervasively controlled state agent. The actions of the
state agent are the actions o f the State, and the State is responsible
for those actions. Likewise, the actions o f the State bind the
Detroit school district as well as all other districts.
3. Because there has been a finding o f a constitutional viola
tion, the State has the duty and responsibility to provide a remedy
that is effective, eliminates the vestiges o f segregation “ root and
branch” , establishes “ schools, not a White and a Negro school, just
schools,” and prevents resegregation.
4. In formulating a remedy which will effectively eliminate
unconstitutional racial isolation, the State can and must provide
for the crossing o f school district lines in an urban metropolitan
area where school district lines never have been treated as
sacrosanct by the State. In fact, the State has transported students
across school district lines and has consolidated school districts for
num erous educational and financial purposes. Many of the
“ Balkanized” school districts, continguous to the Detroit school
district, are operated for the administrative convenience of the
37
State. This is contrasted to typical county-wide southern school
districts, where the issue o f crossing school district lines is never
reached because those states have not chosen to operate their
urban educational systems by way o f small gerrymandered school
districts.
38
II
PETITIONER SCHOOL DISTRICTS’ ALLEGATIONS THAT
THEY WERE DENIED DUE PROCESS ARE WITHOUT
MERIT.
NEITHER THE STATE OF MICHIGAN NOR ITS PO
LITICAL SUBDIVISIONS, PETITIONER SCHOOL
DISTRICTS, ARE “ PERSONS” FOR THE PURPOSE
OF FIFTH AMENDMENT DUE PROCESS.
Petitioner school districts contend that their lack o f parti
cipation in the de jure and Detroit-only hearings was a denial of
due process under the Fifth Amendment to the United States
Federal Constitution. The Fifth Amendment states in pertinent
part that “ [n ]o person shall be . . . deprived o f life, liberty, or
property, without due process o f law . . . . ” A series o f decisions,
however, compel the holding that this section o f the Constitution
is inapplicable to Petitioner school districts since they cannot be
considered as “ persons” in the context o f the due process clause.
The leading case dealing with the issue o f whether or not a
state or a state agency is a person entitled to Fifth Amendment
due process is South Carolina v. Katzenbach, 383 U.S. 301 (1966).
There, the state o f South Carolina sought to enjoin enforcement
o f the Voting Rights Act o f 1965, alleging violations o f the United
States Constitution. This Honorable Court held, inter alia, that:
“ The word ‘person’ in the context o f the Due Process
Clause o f the Fifth Amendment cannot, by any reasonable
mode o f interpretation, be expanded to encompass the states
o f the Union, and to our knowledge this has never been done
by any court . . . nor does a State have standing as the parent
o f its citizens to invoke these constitutional provisions
against the Federal Government, the ultimate parens patria of
every American citizen.” 383 U.S. 323-24.
To further illustrate its position the Katzenbach Court cited
the following language by the highest Louisiana Court:
“ The rights protected by the Fifth Amendment are in favor
o f persons, not states . . . .” International Shoe Co. v.
39
Cocreham, 246 LA. 244, 266, 164 So.2d 314, 322, n.5
(1964). 383 U.S. 324.
Lower court decisions since Katzenbach have uniformly ap
plied the “ person” concept as defined in that case. In Carroll v.
Finch, 326 F. Supp. 891 (D.L. Alas. 1971), a state official at
tempted to compel release to the state o f AFDC-UP funds in spite
of the state’s failure to submit a plan to the federal government. In
granting a motion to dismiss, the court, citing Katzenbach, held
“ [t]he states, as states, are not persons in the context o f the due
process clause o f the Fifth Amendment.” Id. at 894.
In two other federal court cases, individual states openly
acknowledged that they could not be considered as “ persons”
within the context o f the due process clause o f the Fifth Amend
ment. Arizona v. Department o f Health, Education and Welfare,
449 F.2d 456, 478 (9th Cir. 1971); Connecticut v. Department o f
Health, Education and Welfare, 448 F.2d 209, 212 (2nd Cir.
1971). In both cases, the states rested their procedural arguments
on the Tenth Amendment to the United State Federal Constitu
tion. In Connecticut, the court denied the state’s arguments
without deciding the Tenth Amendment issue, while in Arizona the
court turned down the state’s claim stressing that the Tenth
Amendment “ assuredly does not incorporate a Bill o f Procedural
Rights for the states.” 449 F.2d 479.
Judge Friendly recently discussed the question o f whether a
political subdivision o f a state was entitled to Fifth Amendment
due process if its creator, the State, was not. Aguayo v. Richard
son, 473 F.2d 1090 (2nd Cir. 1973), cert. den. sub. nom. 42
U.S.L.W. 3406 (1974). Without deciding the issue, Judge Friendly
indicated that he leaned toward “ non-person” status for cities
when he stated that “ it may be difficult to see how a city can be a
person’ if its progenitor is not.” Id. at 1101. He spoke more
firmly on whether a political subdivision o f a state could raise due
process claims on behalf o f its citizens: “ [A] city would clearly
lack standing to raise due process claims (e.g., lack o f fair hearing)
relating to its citizens.” Id. at 1101. Thus it is clear that Petitioner
scnool districts would not be the appropriate parties to bring suit
for their citizens’ due process claims.
The Katzenbach doctrine should be applied to all political
40
subdivisions and agencies o f the states as well as to the states
themselves. If not, the states could indirectly gain “ person” status
by delegating their powers to a state agency or political sub
division. It is well-established in Michigan that school districts are
creatures o f the State possessing only those rights and powers that
are delegated to them by the State through legislative action, t 32J
Thus the Michigan legislature does not have the power to delegate
to its school districts a right it does not possess itself, namely, the
right to be a “ person” for purposes o f the due process clause of
the Fifth Amendment.
JOINDER OF PETITIONER SCHOOL DISTRICTS IS
NOT REQUIRED EITHER TO PROTECT THEIR IN
TERESTS OR TO PROVIDE ADEQUATE RELIEF.
Joinder o f Petitioner school districts under Fed. R. Civ. P. 19
is required only if complete relief cannot be accorded among those
already parties or if Petitioner school districts claim an interest re
lating to the subject o f the action and are so situated that its dis
position in their absence may, as a practical matter, impair or im
pede their ability to protect that interest. The Detroit Board of
Education contends: (i) that adequate relief may be accorded the
existing parties without the joinder o f the Petitioner school dis
tricts, and (ii) that Petitioner school districts have no substantial
interest which may be impaired or impeded by their absence from
the District Court proceedings.
Although Petitioner school districts make the conclusory ar
gument that they should have been joined in the proceedings be
low, the legal analysis contained in Petitioner school districts’
briefs is conspicuously devoid o f relevant desegregation cases deal
ing with the issue o f joinder.
The leading case in this area is Lee v. Macon County Board
o f Education, 267 F. Supp. 458 (M.D. Ala. 1967), o f f d 389 U.S.
215 (1967). In Macon, the District Court ordered the Alabama
State Board o f Education to effectuate a statewide plan o f dese
gregation involving numerous local school boards throughout the
state. It was argued by the State Defendants I331 that the District
Court was proceeding without jurisdiction over indispensable
[32] p or a discussion o f the agency status of local school districts in Michigan
see, pages 19-37, supra.
13 3 1 Alabama State Board o f Education and other state officers.
41
parties, namely, the local school boards throughout Alabama. The
District Court quickly dispensed with that argument by ruling that
the Alabama State Board o f Education possessed such dominant
power over the local school boards as to make the local school
boards’ presence unnecessary.
“ The argument that this Court is proceeding without
jurisdiction over indispensable parties to this litigation, to-wit,
local school boards throughout the state, is not persuasive.
We are dealing here with state officials, and all we require at
this time is that those officials affirmatively exercise their
control and authority to implement a plan on a statewide
basis designed to insure a reasonable attainment o f the equal
educational opportunities for all children in the state
regardless o f their race.” 267 F. Supp. 479.
The District Court based its conclusion upon a thorough
analysis o f the statutory powers resulting in the pervasive control
of the Alabama State Board o f Education over the local school
boards:
“ . .Every public school is a state school, created by the
state, supported by the state, supervised by the state, through
state wide and local agencies, taught by teachers licensed by
the state, employed by agencies o f the state.’ ” 267 F.Supp.
466 [quoting Williams v. State, 230 Alabama 395, 397, 161
So. 507, 508 (1935)].
❖ * *
“ The control by the State Board o f Education over the local
school systems is effected and rigidly maintained through
control o f . . . finances . . . . This control on the part o f these
defendants over the local boards is all pervasive: it invests in
these defendants power over school construction and consoli
dation, teachers, school transportation and other vital areas
in the operation o f the public schools throughout the state.”
267 F. Supp. 475.
* * *
42
“ It cannot seriously be contended that the defendants do not
have the authority and control necessary to accomplish this
result. Certainly the possibility o f losing state funds for
failure to abide by and implement the minimum constitution
requirements for school desegregation which this opinion and
the accompanying decree require will, without any doubt,
effect compliance. Indeed, it is quite clear from the evidence
in this case that the local school officials will, through eco
nomic necessity if fo r no other reason, abide by the orders
and regulations o f these state officials. . . . ” 267 F. Supp.
478. [emphasis added] .
The District Court in Macon based its conclusion o f pervasive
state control on specifically enumerated statutory powers. The
following comparative analysis shows that the same statutory
powers residing in the Alabama State Board o f Education, and
cited by the District Court in Macon, are also statutorily vested in
the Michigan State Board o f Education and its officers and depart
ments, all o f whom were original defendants in the instant case:
STATE POWER ALA BA M A MICHIGAN
1 . Training and Certification
o f Teachers
Title 52,
§20
M .C.L.A. §388.1010
2. State Superintendent
Executes Educational Policy
Title 52,
§45
M .C .L.A . §388.1014
3. State Board, Through Super- Title 52, M .C.L.A. §388.1009
intendent, Exercises General
Supervision and Control
§ 1 4 ,3 1 M .C .L.A . §340.251
4. Equalization o f Public School
Facilities Throughout the State
Title 52,
§33
M .C.L.A. §388.1121
5. Minimum Content o f Course Title 52, M .C .L.A . §340.361-365
Study §17 M .C .L .A . §388.371
6. Student Health and Safety Title 52,
§15
M .C .L.A . §340.376
M .C.L.A. §325.511
M .C.L.A . §340.252
M .C.L.A . §340.623
7. Provision o f Vocational Title 52, M .C .L .A . §395.21
Education §45 1(4 ) M .C .L.A . §395.81
M .C.L.A . §388.1161
43
STATE POWER ALABAMA MICHIGAN
8. Partial State Aid for School Title 52,
Transportation Programs and §209
Transportation Route
Approval
9. Allocation o f Local School Title 52,
District Funds § §3 4 , 47
10. Regulation and Approval Title 52,
o f School Building Con- § 15
struction
11. School Consolidation (Surveys and
Recommends)
267 F.Supp. 471
12. Site Approval 267 F.Supp. 471
M .C .L.A . §388.1001
M .C.L.A. §388 .1175
M .C.L.A. §38 8 .11 01 ,
et. seq.
M .C .L.A . §388.851
(Final Approval by
State Board)
M .C.L.A. §3 4 0 .4 0 2
(For State Bond
Approval)
M .C.L.A. §38 8 .93 3
Petitioner school districts have relied heavily on the powers
and duties o f the local school districts in Michigan as proof of
their autonomy and as denial o f the existence o f pervasive state
control. [34] a comparison o f the Michigan local school district
powers and duties, specifically outlined by Petitioner school dis
tricts, [35 ] with Alabama local school district powers and duties
reveals that those powers and duties are virtually identical. 136]
grief for Petitioner The Grosse Pointe School System at 48 -49 ; Brief
for Petitioners Allen Park Public Schools, et al., at 47 -48 ; Brief for Amici
Curiae, Bloomfield Hills Schools District, et al., at 6-7.
See footnote 34, supra.
[36]
Local School
District Power
1. Acquire Real and Personal
Property
2. Hire and Contract with
Personnel
Alabama Michigan
Title 52,
§ §7 1 , 161
Title 52,
§ § 8 6 , 196
MCLA § §3 4 0 .2 6 ,
340.77 ,
340.113 ,
340.165,
340 .192 ,
340.352
MCLA § §34 0 .5 6 9 ,
340.574
44
[36] Continued
Local School
District Power Alabama Michigan
3. Levy Taxes for Operations (Election)
Title 52,
§254
MCLA §34 0 .56 3
4. Borrow Against Receipts Title 52,
§243
MCLA §34 0 .56 7
5. Determine Length of School (Opening Day) MCLA §340.575
Terms Title 52,
§89
6. Control Admission o f Non-resi- Title 52, MCLA §340 .582
dent Students §6 1 (5 )
7. Determine Courses of Study Title 52,
§ § 8 7 , 120, 186
MCLA §340 .583
8. Provide Kindergarten Program Title 52,
§16 2
MCLA §34 0 .58 4
9. Establish and Operate Voca- Title 52, MCLA §340.585
tional Schools § §3 8 5 , 388,
398(1)
'
10. Offer Adult Education (Special Schools) MCLA §340.586
Programs Title 52,
§173
11. Establish Attendance Areas Title 52,
§ § 3 1 4 ,9 5
MCLA §340.589
12. Arrange for Transportation of Title 52, MCLA §340.591
Non-resident Students §6 1 (4 )
13. Acquire .Transportation Title 52, MCLA §340.594
Equipment §1 6 1 (1 )
MCLA §340.60514. Receive Gifts and Bequests Title 52,
§ § 7 1 ,1 6 0
15. Employ an Attorney Title 52,
§99
Rep. Atty. Gen.
1936-38, page 95
MCLA §340.609
16. Make Rules and Regulations Title 52, MCLA §340.614
for the Operation o f Schools § § 7 3 , 158, 179
MCLA § 3 4 0 .643(a)17. Cause Authorized Millage to be Title 52,
Levied § §2 4 6 ,2 5 4
18. Acquire Property by Title 52, MCLA §340.711
Eminent Domain § § 9 9 , 168 et seq.
19. Approve and Select Textbooks Title 52, MCLA § §340.882,
§43 3(9 )(e) 340.887
20. Care and Custody of Schools Title 52, MCLA §§340.578,
and Property § § 1 8 0 , 181,
72 , 73
340.614
21. Sue or Be Sued Title 52,
§ § 9 9 ,1 6 1
MCLA §340.352
45
Pervasive state control was found to exist in Alabama from a
comparison o f powers possessed by the State Board o f Education
with those o f the local school boards. The District Court in Macon
held that this pervasive state control obviated the necessity to join
the local school boards. Inasmuch as the Detroit Board o f Educa
tion has shown that the educational powers present at the state
and local levels in Michigan correspond with those o f Alabama, the
Macon standard would demand a denial o f Petitioner school dis
tricts’ claim for relitigation o f previously decided issues.
Two recent Pennsylvania school desegregation cases, Hus
bands v. Commonwealth o f Pennsylvania, 359 F. Supp. 925 (E.D.
Penn. 1973), and Hoots v. Commonwealth o f Pennsylvania, 359
F. Supp. 807 (W.D. Penn. 1973), held that surrounding school
districts, other than those deemed segregated, were not eligible for
joinder under Fed. R. Civ. P. 19 even though their composition
and boundaries could have been altered as a result o f the Pennsyl
vania State Board o f Education’s implementation o f a court order
ed desegregation plan.
In Husbands, supra, the Pennsylvania State Board o f Educa
tion, through power granted to it by the Pennsylvania Legislature,
had reorganized certain school districts. The District Court ruled
that the reorganization had resulted in de jure segregation. The
Plaintiffs 137] sought a remedy to the de jure segregation by suing
the Commonwealth o f Pennsylvania and the Pennsylvania State
Board o f Education. The Pennsylvania State Defendants contend
ed that the complaint should have been dismissed for failure to join
surrounding school districts who, although not segregated, would
have participated in the remedy. The Court stated:
“The crucial question is whether these other school districts
do, in fact, claim an interest relating to the subject o f the
action. There is little doubt that these school districts may
be affected by the results o f this action. However, this does
not mean that they necessarily have rights cognizable under
Federal Rule o f Civil Procedure 19(a)(2). . . .The districts
played no direct role in their formation and they have no
proprietary o f possessory rights therein. Nor would the ab-
137]
Black students and their parents.
46
sence o f these districts prevent this court from ordering com
plete relief under Federal Rule o f Civil Procedure 19 (a) (1).”
359 F. Supp. 937. [emphasis added].
In Hoots, supra, Plaintiffs!38] ajso sought a remedy for racial
segregation caused by the creation o f certain local school districts.
The District Court refused to join, under Fed. R. Civ. P. 19, sur
rounding school districts who although not segregated would have
been affected by the desegregation plan. The District Court found
that the surrounding school districts were not needed to provide
adequate relief to the parties nor to protect any substantial in
terest which they might allege.
In response to the allegation that surrounding school districts
were necessary to accord complete relief, the District Court
stated:
“ The absence o f the surrounding school districts does not
affect the complete relief available to existing parties. The
power to draw school district boundaries rests solely with the
Commonwealth o f Pennsylvania and the Pennsylvania State
Board o f Education. Local School Districts have no power or
control over their own boundaries. They can be altered at
any time by the Commonwealth.” 359 F. Supp. 821.
* * *
“ While surrounding school districts may be concerned with the
results o f this litigation and even be affected by it, this does
not require their joinder under Fed. R. Civ. P. 19.” 359 F.
Supp. 821-22.
The District Court concluded that the absent school districts
had no interest to protect in the litigation.
“ The surrounding school districts have no legal right to have
their existing boundaries maintained, and consequently, they
have no legal interest under provisions o f Fed. R. Civ. P. 19
which can be affected by the outcome o f this litigation.” 359
F. Supp. 821. [emphasis added].
* * * 38
[38] Black students and their parents.
47
The statutory powers vested in the Pennsylvania State Defen
dants in Husbands and Hoots are similar to those statutory powers
vested in the Michigan State Defendants in the instant case. [39]
Moreover, the statutory powers vested in Pennsylvania local school
districts are virtually identical to those statutory powers vested in
Michigan local school districts, f4°1 Given the striking parallels
between Pennsylvania and Michigan statutory arrangements, the
Husbands and Hoots holdings are direct precedent for a like hold
ing here, viz., that Petitioner school districts do not have a sub
stantial interest in the proceedings below, neither are they neces
sary for relief.
In another school desegregation case, Evans v. Buchanan, 256
F. 2d 688 (3rd Cir. 1958), the Delaware State Superintendent o f
Public Instruction and the Delaware State Board o f Education
sought to avoid an injunction which ordered them to develop a
plan of desegregation for the Delaware School System. They ar
gued that the State Board o f Education was without power to
force the local school boards to comply with a court ordered
remedy.
The State o f Michigan has the power to draw school district bound
aries as does the Commonwealth of Pennsylvania. In addition, M.C.L.A.
§388.71 1 gives the Michigan State Board o f Education ultimate control over
alteration of local school district boundaries. For the District Courts’ discus
sion of Pennsylvania State powers see Husbands v. Commonwealth o f Penn
sylvania, 359 F. Supp. 925, 937 (E.D. Penn. 1973) and Hoots v. Common
wealth o f Pennsylvania, 359 F. Supp. 807, 811-12 (W.D. Penn. 1973). For a
general discussion of Michigan State powers, see pages 19-37, supra.
[40]
Local School
District Power
1. Acquire Real and Personal
Personal
2. Hire and Contract with
Personnel
3. Levy Taxes for Operations
Pennsylvania Michigan
Title 24,
§ §7 -703 ,
8-801
Title 24,
§ 11-1121
Title 24,
MCLA § § 3 4 0 .2 6 ,
340.77 ,
340.113 ,
340.165,
340.192 ,
340.352
MCLA § §34 0 .5 6 9 ,
340.574
MCLA §34 0 .56 3
4- Borrow Against Receipts
3- Determine Length o f School
Terms
6- Control Admission of Non-resi
dent students
§5-507
Title 24,
§6-640
Title 24,
§1 5-1504(a)
Title 24,
§ §13 -1 31 3 ,
13-1316
MCLA §34 0 .56 7
MCLA §34 0 .57 5
MCLA §3 4 0 .5 8 2
48
The Third Circuit found this argument inapposite to Dela
ware School law. The Court based its opinion on general powers
and duties t41l residing in the State Board o f Education and the
State Superintendent, instead o f relying upon a step-by-step out
line o f specific powers which would provide a formal remedy. The
Delaware State Defendant’s general controlling powers, in and of
themselves, convinced the Court that the Delaware State Defen
dants could provide the remedy requested.
[40] Continued
Local School
District Power Pennsylvania Michigan
7. Determine Courses o f Study Title 24,
§15 -1 51 2
MCLA §340.583
8. Provide Kindergarten Program Title 24,
§5-503
MCLA §340.584
9. Establish and Operate
Vocational Schools
Title 24,
§18 -1 80 6
MCLA §340.585
10. Offer Adult Education
Programs
Title 24,
§ § 1 9 -1 9 0 2 ,
19-1922
MCLA §340.586
11. Establish Attendance Areas Title 24,
§13 -1 31 0
MCLA §340.589
12. Arrange for Transporation o f
Non-resident Students
Title 24,
§13 -1 36 4
MCLA §340.591
13. Acquire Transportation
Equipment
Title 24,
§ § 1 3 -1 3 6 1 ,
13-1363
MCLA §340.594
14. Receive Gifts and Bequests Title 24,
§2 -21 6
MCLA §340.605
15. Employ an Attorney C f Title 24,
§2-213
MCLA §340.609
16. Make Rules and Regulations
for the Operations o f Schools
Title 24,
§5 -510
MCLA §340.614
17. Cause Authorized Millage to be
Levied
Title 24,
§ §6 -65 2 , 6-672
MCLA § 340.643(a)
18. Acquire Property by Eminent
Domain
Title 24,
§ § 7 -7 0 3 , 7-721
MCLA §340.711
et seq.
19. Approve and Select Textbooks Title 24,
§ § 8 -8 0 1 ,8 -8 0 3
MCLA § §340.882,
340.887
20 . Care and Custody o f Schools
and Property
Title 24,
§7-701
MCLA § §340.578,
340.614
21 . Sue or be Sued Title 24,
§2-213
MCLA §340.352
[411 E.g., the power to determine the educational policies o f the state, the
authority to adopt rules and regulations for the administration o f the public
school system, the duty to provide a uniform equal and effective system of
public schools throughout the state, general control and supervision over the
public schools of the state, and the power to decide all controversies and dis
putes involving the administration o f the public school system. 256 F.2d
693-94.
49
As was seen in the earlier analysis o f Macon and on pages
19-37, supra, the Michigan State Board o f Education and its
officers and departments possess general powers o f supervision and
control similar to those o f the Delaware State Defendants in
Evans. Moreover, the Michigan State Board o f Education and its
officers and departments possess certain specific powers which
would insure compliance with a court ordered state implemented
plan of desegregation.
One such specific power is the power o f the Michigan State
Board o f Education and the Department o f Education, in conjunc
tion with the Michigan State Treasurer, to disburse or withhold
state aid to the local school district5. [42] The Michigan Legisla
ture has established a system o f distributing state aid whereby the
State Board o f Education promulgates rules and regulations as to
the proper amount o f funding local school districts should re
ceive. 143] The Michigan Department o f Education collects infor
mational returns from the local school districts in order to ascer
tain the amount to be disbursed to each individual school dis
trict. [44] i f the submitted return is defective, the Department o f
Education will make an apportionment on the basis o f any evi
dence that is available to it. [45]
Upon the Department o f Education’s determination o f the
amount o f state aid allocable to the local school boards, a state
ment o f amount is prepared by the Department o f Education for
6aCh f l ° fal s c h ° o 1 district and is delivered to the State Treas
urer. 6 ] The State Treasurer then prepares a warrant for the
amount stated in favor o f the individual school district. This war-
rant is then delivered to the individual school district treas-
arer. Except for special allotments, the categories on which
state aid may be expended by school districts are limited to the
following: the payment o f teachers’ salaries, tuition, transpor
tation, lighting, heating and ventilation, water service, and the
Purchase o f textbooks or other supplies. [481 l n addition, no more
[42I '
MCLA §388 .1101 et seq.
[ 31 MCLA §388.1 107
[441
MCLA §388.1 1 13.
t451 MCLA §388.1 1 14.
t461 MCLA §388.1 1 17.
[4?1 MCLA §388.11 17.
1481 MCLA §388.1 1 18.
50
than five percent o f state aid may be expended on capital costs or
debt service, f49) In this regard, the Department o f Education is
entrusted with the responsibility o f determining the reason
ableness o f the above expenditures.t5°3 In the event that the
Department o f Education finds an unreasonable expenditure of
state aid, it may withhold from any local school district the appor
tionment otherwise due for the fiscal year following discovery of
the violation. 5513 Thus, the steady flow o f funds from the State
Treasury to the local school districts depends upon compliance by
the local school districts with rules promulgated by the State
Board o f Education, and upon standards o f reasonable spending as
determined by the Department o f Education.
The power o f the State Board o f Education and Department
o f Education to funnel state aid to the local school districts is
identical with the all important “ power o f the purse” discussed in
Macon:
“ It cannot seriously be contended that the Defendants did
not have the authority and control necessary to accomplish
this result. Certainly the possibility o f losing state funds for
failure to abide by and implement the minimum constitu
tional requirements for school desegregation which this opin
ion and the accompanying decree require will, without any
doubt, effect compliance.” 267 F.Supp. 478.
If the Michigan State Defendants in the instant case are or
dered to promulgate a metropolitan plan o f desegregation, they
could effectively compel Petitioner school districts’ compliance by
suspending state aid to defiant local school districts. Without state
aid many defiant local school districts would approach insol
vency t52 53l since there is a limit on the amount o f millage they can
levy. 153] Compliance with the State Board o f Education’s dese
gregation mandate would ensue, or defiant districts would find
themselves in the position o f having to borrow funds. Before a
Michigan local school district can borrow funds, it must obtain the
[493 Id.
[ 50 ] Id
t5 1 3 Id.
[ -^ l State Aid Chart, Exhibit I, infra, at 126.
[53] MCLA §21 1 .20 3 .
51
approval o f the Department o f Education, f541 The District Court
could order the Department o f Education to disapprove all bor
rowing by any local school district which refuses to comply with
the court ordered plan o f desegregation. This would block any
defiant school district from obtaining alternative external funds to
replace suspended state aid payments. 1551
Should the District Court approve a metropolitan desegrega
tion remedy requiring school bussing, the Michigan Legislature has
provided yet another tool by which the Department o f Education
could effectuate the remedy. Under M.C.L.A. § 388.1171, the
State will pay up to 75% o f the actual cost o f transporting pupils
who live farther than one and one-half miles from school. How
ever, this allotment is contingent upon the Department o f Edu
cation’s approval o f the bus route. If a local school board refuses to
alter its bus routes in accordance with a state imposed plan o f
desegregation, the Department o f Education could disapprove all
alternative bus routes, thus suspending the local school district’s
state transportation funds.
Perhaps the greatest power to effectuate a remedy resides
with the State Superintendent o f Public Instruction. M.C.L.A. §
340.253 provides that the State Superintendent may remove any
local board member w ho...“ shall persistently and without sufficient
cause refuse or neglect to discharge any o f the duties o f his
office.” Those duties could be interpreted to include compliance
with a court ordered state imposed plan o f desegregation. 1561
Persistent refusal to comply with the court ordered remedy by any
local school board could result in that board’s dismissal.
In the words o f the District Court for the Western District of
Michigan:
“ The State Board o f Education and the Superintendent
o f Public Instruction have ample administrative and judicial
[54] MCLA §38 8 .12 34 .
The State Board of Education has the additional power to reorganize a
school district which is insolvent and indebted to the State. State Board of
Education action in such cases is final MCLA §388.71 1 et. seq.
1561 Cf MCLA §3 4 0 .3 5 5 .
52
process to compel compliance with the mandates o f the
Fourteenth Amendment and the Constitution o f the State of
Michigan to secure equal protection o f law and equal educa
tional opportunity for Black children, or for any children,
who may be denied such educational opportunities by reason
o f their religion, race, creed, color or national origin.” Oliver
v. Kalamazoo Board o f Education, Civ. No. K-88-71 C.A.
(W.D. Mich., filed October 4, 1973) Slip Op. 86.
THE COURTS BELOW ACTED IN A MANNER
WHICH WOULD AVOID UNNECESSARY DELAY
AND STILL PROTECT ANY COGNIZABLE IN
TEREST OF PETITIONER SCHOOL DISTRICTS
Petitioner school districts contend that they have been de
nied due process by the District Court, and are being denied such
under the conditions o f remand imposed by the Sixth Circuit.
Before addressing the legal issues involved, a review o f the chronol
ogy o f events before the District Court will clearly demonstrate
that the claim denial o f due process in this litigation is the result,
for the most part, not o f the conduct o f the District Court, but of
Petitioner school districts’ own acts and omissions during the
course o f the proceedings below.
A. Chronology of Trial Court Proceedings Surrounding Pe
titioner School Districts’ Intervention.
On September 27, 1971, the District Court rendered its find
ings o f Fact and Conclusions o f Law on the issue o f acts o f de jure
segregation committed by the State o f Michigan and the Detroit
Board o f Education. Bradley v. Milliken, 338 F. Supp. 582 (E.D.
Mich. 1971). On October 4, 1971, the District Court ordered the
Detroit Board o f Education to submit, within sixty days, Detroit-
only plans for desegregation o f the Detroit public schools and
further ordered all other parties to submit, within one hundred
and twenty days, metropolitan plans o f desegregation. A written
order to that effect was entered by the District Court on Novem
ber 5, 1971. (Ia3).
As had all prior aspects o f the litigation, the findings and the
order o f the District Court received widespread news media cover
53
age throughout the Detroit metropolitan area and the State of
Michigan.f57 * *1 Yet it was not until February 10, 1972 (Ia4), three
months after the District Court’s November 5, 1971 order, that
any Petitioner school district filed a motion for intervention under
Fed. R. Civ. P. 24. 158] On the following Monday, February 14,
1972, the District Court promptly noticed the motions then
pending for a hearing on February 22, 1972. (Ia4). Within four
days o f the issuance o f that notice Petitioners Allen Park Public
Schools, et al., [59] Southfield Public Schools and Royal Oak
School District filed similar motions to intervene. (Ia4-5).
The speed with which these school districts responded to the
District Court’s notice is indicative o f the close scrutiny given to
every phase o f the proceedings below by suburban school districts
throughout the Detroit metropolitan area. Petitioner school dis
tricts forebore earlier attempts to intervene on the issue o f segrega
tion because o f a realization on their part that their alleged inter
est in the proceedings below did not materialize until metropolitan
plans o f desegregation had been filed by Petitioners William G.
Milliken, et a/J60! As was stated by Petitioners Allen Park Public
Schools, etal., in their “ Brief In Support O f Motion To Intervene,”
dated February 16, 1972:
“ . . . Certain o f these plans, if adopted and implemented by
order o f this Court, would substantially and materially affect
Intervenors by virtue o f the effect o f said plans upon the
responsiblity o f said Intervenors for the education o f the
pupils within their respective school districts and the expen
diture o f funds in connection therewith. Page 3.
* * *
[57] evj^gjjgg {jjg generai pUbiic ’s awareness of the proceedings in this
litigation, a motion to intervene was filed on December 2, 19 72 by Kerry and
Coleen Green, et al. representing a class o f school children residing in and
attending suburban school districts. (Ia4).
[581
‘ 1 The first motion was that of Petitioner Grosse Pointe Public School
System on, February 10, 1972. (Ia4).
Representing some forty suburban school districts.
[60] Certain suburban school districts have refrained entirely from inter
vening in this action. Instead they have sought direct relief from the Sixth
btfcuit and this Honorable Court so as to circumvent the powers exercised by
le District Court in implementing an effective desegregation plan. Bloom-
M d Hills School District v. Roth; West Bloomfield Hills School District v.
Roth'< and, Birmingham School District v. Roth, 410 U.S. 954 (1973).
54
“ Whether an application for intervention is timely is a matter
committed to the sound discretion o f the Court, (citations
om itted ). At the outset o f the instant proceeding and
throughout the hearings on the issue o f de jure segregation
within the City o f Detroit School District there was no indi
cation that the proceeding would affect the rights and inter
ests o f Intervenors and no grounds or occasion for their seek
ing leave to intervene.
“ With the very recent submission o f so-called Metropolitan
Plans o f Desegregation for consideration by the Court, which
plans would affect Intervenors, it is essential that Intervenors’
interests be adequately represented by their presence in the
proceedings. No hearings have been held with respect to the
plans recently submitted to the Court and none o f the exist
ing parties to the litigation will be harmed or prejudiced by
the admission o f Intervenors to the proceedings.” [citation
om itted]. Pages 4-5.
Thus, the above statement concedes that Petitioner school
districts had no interest to protect prior to the District Court’s
request for submission o f metropolitan plans o f desegregation.
The hearing on all motions for intervention filed by Peti
tioner school districts was held, as scheduled, on February 22,
1972. At that time the District Court also informed all parties and
movants, through their counsel then assembled in open court, that
the hearings on D etroit-on ly desegregation remedies were
scheduled to commence on March 14, 1972. (Ia5). A decision on
the motions to intervene was deferred pending submission of
reasonably specific desegregation plans to the District Court. (Ia5).
On March 7, 1972, the District Court formally n o t i f i e d a l l
parties and movants that:
“ 1. Hearing on desegregation intra-city plans will proceed,
beginning at 10:00 a.m., Tuesday, March 14, 1972.
“ 2. Recommendations for ‘conditions’ o f intervention to be
submitted not later than 10:00 a.m., March 14, 1972. 61
[61] -pjjg proof Qf Mailing, dated March 6, 1972, indicates that such notice
was sent to counsel of record for all parties and movants for intervention.
(Ial 99-200).
55
“ 3. Briefs on propriety o f metropolitan remedy to be submit
ted not later than March 22, 1972.
“ 4. Tentatively and unless the Court rules otherwise, hear
ings on metropolitan remedy to commence 10:00 a.m.,
March 28, 1972.” (Ia203).
Although petitioner school districts were fully aware, as o f
February 22, 1972, o f the scheduled hearings on Detroit-only de
segregation remedies, commencing March 14, 1972, no recommen
dations for conditions o f intervention were filed by them until
March 14, 1972.162] (Ia5). Evidently petitioner school districts
felt no compunction to respond affirmatively prior to that dead
line.
On March 15, 1972 the order granting Petitioner school dis
tricts the right to intervene was filed and entered on the docket.
(Ia6). The hearings on Detroit-only desegregation plans began on
March 14, 1972 and continued through March 21, 1972. (Ia5-6).
Petitioner school districts failed and/or refused to participate in
the hearings on Detroit-only desegregation plans, under the con
ditions o f intervention. No action in response to the conditions o f
intervention was taken by Petitioner school districts until March 21,
1972, the final day o f the hearings on the appropriateness of
Detroit-only desegregation remedies. (Ia6). At that time Petitioner
school districts filed objections to the conditions o f intervention
imposed upon them by the District Court. (Ia6-7) 163] Petitioner
school districts made their first appearance at the District Court
hearings as intervenors on April 4, 1972, the first day o f hearings 62 *
[62] s eg' lettgj- Qf C0Unsel for Petitioner Grosse Pointe Public School
System, dated March 13, 1972, filed of record on March 14, 1972. (Ia
201-02 ).
Indeed, Southfield Public Schools did not file its objections to the
conditions of intervention until April 4, 19 72. (Ia 7).
56
on metropolitan desegregation remedies. (Ia7). !64]
The Sixth Circuit has vacated the District Court’s “ Ruling on
Propriety o f Considering a Metropolitan Remedy to Accomplish
Desegregation o f the Public Schools o f Detroit” dated March 24,
1972 and the District Court’s “ Ruling on Desegregation Area and
Development o f Plan” dated June 14, 1972. In addition, Peti
tioner school districts have been joined under Fed. R. Civ. P. 19
and have been permitted to offer additional evidence, and to cross-
examine available witnesses who previously have testified on the
above issues.!651 As to the matters contained in its “ Ruling on
Issue o f Segregation” dated September 27, 1971, and its “ Finding
o f Fact and Conclusions o f Law on Detroit-Only Plans o f Deseg
regation,” dated March 28, 1972, the District Court is not re
quired to receive any additional evidence. The Sixth Circuit ruled
that the finding o f de jure segregation in the Detroit School
System and the finding o f the inadequacy o f the Detroit-only
plans were “ supported by substantial evidence.” (178a).
[64] Petitioner school districts also contend that the speed with which the
District Court proceeded during the remedial stages of the litigation pre
vented them from adequately preparing for meaningful participation during
the period involved. As the textual chronology indicates, from the date of the
filing of the Complaint in this action by Respondents Ronald Bradley, et al,
on August 19, 1970 (Ia l) until the period during which the District Court
was involved in hearings to determine a meaningful desegregation remedy in
March and April 19 72, one complete school year had elapsed and a second
was nearing its completion. The District Court had been instructed, quite
early in the litigation, by the Sixth Circuit, to proceed as expeditiously as
possible. Bradley v. Milliken, 438 F.2d 945 (6th Cir. 1971). Once a violation
was found, it was the duty of the District Court to move as expeditiously as
possible to remedy the constitutional enfringement o f the rights of Res
pondents, Ronald Bradley, et al, and yet keep the disruption o f the educa
tional process at a minimum by formulating and implementing a desegrega
tion plan prior to the start o f a particular school year.
[65] Under Fed. R. Civ. P. 21 , which modifies joinder powers under Fed. R-
Civ. P. 19, “ [pjarties may be dropped or added by order o f the Court . . . at
any stage o f the action on such terms as are just.” Thus the Sixth Circuit had
the procedural authority to join Petitioner school districts after the Detroit-
only hearings, if in fact, those Petitioner school districts were even entitled to
joinder.
57
B. By Their Own Admission Petitioner School Districts
Had No Substantial Interest in the D e Jure Hearings and
Could Have Made No Contribution to Them.
The Sixth Circuit has upheld the District Court ruling on the
finding o f de jure segregation in the Detroit School System. At the
trial and on appeal, the Detroit Board o f Education and the Michi
gan State Defendants vigorously defended against the allegations o f
de jure segregation. The Detroit Board o f Education and the Mich
igan State Defendants, both accused o f de jure segregation, fully
utilized all information and witnesses necessary to adequately de
fend on that issue. Yet both the District Court and the Sixth Cir
cuit concluded that the finding o f de jure segregation in the
Detroit School System was “ supported by substantial evidence” .
(178a).
Petitioner school districts now allege that they should have
been joined as parties defendant for proper adjudication o f the
issue o f de jure segregation in the Detroit School System. They
raise this objection in spite o f evidence which substantiates their
previous intent not to litigate this issue at the trial court level. For
example, Petitioner Grosse Pointe Public School System, in a letter
to the District Court dated March 13, 1972 (la 201-02), stated:
“ 2) It is not the intention o f The Grosse Pointe Public School
System to reopen any matters previously adjudicated by the
Court except as the same may directly affect the interests o f
The Grosse Pointe Public School System. Specifically, we do
not wish to litigate the question o f de jure segregation in the
Detroit Public School System. We intend to approach this
litigation in a positive and constructive manner and to
minimize any administrative problems which may be created
by the addition o f a number o f additional counsel to the
proceedings. ” [emphasis added].
This desire was proper since the Grosse Pointe Public School
System could have added nothing to those hearings. Petitioners
Allen Park Public Schools, et al., made a similar admission in their
Brief In Support Of Motion To Intervene,” dated February 16,
1972:
• • • At the outset o f the instant proceeding and throughout
the hearings on the issue o f de jure segregation within the
58
City o f Detroit School District there was no indication that
the proceeding would affect the rights and interests o f Inter-
venors and no grounds or occasion for their seeking leave to
intervene.” Page 4.
Thus, at the time o f their intervention Petitioner school dis
tricts conceded that the de jure hearings were properly conducted
without their presence.
Petitioner school districts now seek relitigation o f the issue of
de jure segregation in the Detroit School System. Yet in their
Briefs before this Honorable Court, none o f them indicate what
new information they would provide on that issue. Moreover,
none o f them have delineated their objections to evidence already
introduced in the de jure hearings. This conspicuous omission,
coupled with Petitioner school districts’ previous admissions,
clearly indicates that their purpose for de novo hearing o f the issue
o f de jure segregation is to delay an effective remedy for segrega
tion and not to protect a substantial interest.
C. As Evidenced By Their Voluntary Refusal To Participate As
Intervenors, Petitioner School Districts Had No Substantial
Interest in the Detroit-only Hearings and Could Have Made
No Contribution To Them.
The Sixth Circuit has upheld the District Court ruling on the
inadequacy o f a Detroit-only remedy. Petitioner school districts
now allege that the conditions o f intervention imposed by the
District Court were too severe and that they should have been
joined as parties defendant, instead o f intervenors, during the
Detroit-only hearings. The Detroit Board o f Education contends,
however, that Petitioner school districts are estopped from alleging
any denial o f due process as a result o f their own voluntary inac
tion at the Detroit-only hearings.
Reference to the conditions o f intervention ultimately im
posed by the District Court, dated and filed March 15, 1972,
(Ia205-07) 166] indicates that the District Court’s order was in 66
[66] jh e conditions limited petitioner school districts to questions which
directly affected their interests, (la 205-07 ), but also assured that such inter
vention would “ minimize any administrative problems which may be created
by the addition o f a number o f additional counsel to the proceedings.” (Ia
2 0 2 ) See n. 62 , supra.
59
substantial conformity with the conditions o f intervention initially
acceded to by Petitioner school districts. [671 More pertinent,
however, is the fact that the Sixth Circuit ruling exactly parallels
the request made by Petitioner Grosse Pointe Public School
System in its letter o f March 13, 1972:
“ 1) The Grosse Pointe Public School System has sought in
tervention for two principal reasons, which are:
a) To participate in the litigation o f the question o f the
legal propriety o f the implementation o f a metropolitan
plan for the desegregation o f the School System o f the
City o f Detroit which would directly involve The Grosse
Pointe Public School System,
b) to offer objections, modifications or alternatives to
metropolitan plans o f desegregation presented to the Court
by other parties; insofar as such plans affect the interests
o f The Grosse Pointe Public School System.” (Ia 201-02).
As we have already shown, Petitioner school districts volun
tarily chose not to participate as intervenors in the Detroit-only
proceedings. Moreover, their objections to the conditions o f inter
vention were not filed until March 21, 22 and April 4,1972, [681
(Ia6-7), several days after the District Court’s ruling and order
granting intervention (March 15, 1972) and several days after the
start of hearings on Detroit-only desegregation plans. Had Peti
tioner school districts truly been concerned with the claimed
denial o f due process resulting from the conditions o f intervention
imposed by the District Court, a prompt response to the ruling
and immediate participation in the Detroit-only proceedings
would have been appropriate. Instead, Petitioner school districts
did not participate at all until the hearings on metropolitan plans
and they did not take any further action on their objections to the * *
!67] It should be noted that until the District Court found that a Detroit-
only plan was inadequate, the defendants present at the Detroit-only hearings
were sufficient to provide a remedy. Had a Detroit-only remedy been deter
mined as sufficient, the Michigan State Defendants and the Detroit Board of
aucation could have provided a complete remedy to the segregated condi-
ions without any input from the surrounding school districts.
See, n. 63, supra.
60
District Court’s conditions o f the intervention. t69J
From the record, it is clear that several prominent expert wit
nesses testified at the Detroit-only hearings. (IVa 1-140). Petitioner
school districts have not indicated what additional relevant evi
dence they could add to the Detroit-only hearings. Most likely
they would have supplied more witnesses to rediscuss the same
sociological theories and research already presented to the District
Court. This fact, coupled with Petitioner school districts’ volun
tary refusal to participate in the Detroit-only hearings as inter-
venors, supports -the Sixth Circuit’s decision. Relitigation o f the
Detroit-only hearings would only result in the indefinite delay of
an effective remedy for segregation in the Detroit school district.
D. The Federal Courts Are Loath To Reopen Complex Liti
gation Where Such Action Would Lead To Delay and the
Waste of Judicial Resources.
Petitioner school districts now ask this Honorable Court to
overburden the District Court and the previous parties hereto with
de novo litigation on issues for which the Petitioner school dis
tricts are unable to add any substantial information. In several
cases the federal courts have denied joinder under Fed. R. Civ. P.
19 where the effect o f such joinder would nullify prior proceed
ings — an outcome which petitioner school districts presently
seek, t701
[69] por example, no interim appeal, either as o f right, under Rule 4 of the
Federal Rules of Appellate Procedure, or by permission, under Rule 5 of the
Federal Rules of Appellate Procedure, was taken or even attempted by Peti
tioner school districts. In fact, no further action was taken with regard to the
conditions of intervention until the appeal to the Sixth Circuit, granted on
July 20, 1972.
[70] Fed. p Civ. p j 9 was rewritten in 1966 to enable the trial court to
shape a decree providing the maximum remedy which the facts permit and
the public interest demands without infringing upon substantial interests of
absent persons. Fed. R. Civ. P. 19 is not to be interpreted in a formalistic
manner but rather in a way which provides substantial justice after a prag
matic analysis of the facts o f each case. Cohn, The New Federal Rules of
Civil Procedure, 54 Geo. L.J. 1204, 1206-07 (1 9 6 6 )\ Provident Tradesmens
Bank & Trust Co. v. Patterson, 390 U.S. 102, 116 n. 12 (1968).
61
In Fair Housing Development Fund Corp. v. Burke, 55
F.R.D. 414 (E.D. N.Y. 1972), a lawsuit alleging racially restrictive
zoning in the Town o f Oyster Bay, Long Island, the District Court
refused to join certain villages (and their respective Mayors) which
were situated within the geographic boundaries o f the Town o f
Oyster Bay. The court emphasized that the zoning powers o f the
Town had been properly delegated to the Town Board by the
State o f New York (as the State o f Michigan has delegated broad
educational powers to the Michigan State Board o f Education) and
that the proposed village defendants were not necessary for full
relief. In addition, the court pointed out that,
“ . . . an enormous amount o f pretrial discovery has been un
dertaken, independent research and investigation have been
conducted, and several procedural issues have been litigated.
An enormous amount o f legal energy has been expended on
issues between the present parties, and only after a year’s
work have the issues begun to be narrowed and defined. To
join the proposed defendants at this state o f the case would
be unwise.
* * *
“The trial and date o f ultimate resolution o f the issues o f
fundamental importance involved in this case would be post
poned indefinitely. The addition o f the proposed defendants
at this state o f the case would, therefore, unnecessarily delay
the resolution o f the case and unduly prejudice the present
defendants in their present posture o f preparation.” 55
F.R.D. 420. [Citations and footnote omitted, emphasis
added].
In the instant case, relitigation o f the issues o f de jure segre
gation and the inadequacy o f the Detroit-only remedy would
waste nearly four years o f preparation and trial comprising fourty-
six days o f trial hearings, six thousand pages o f trial transcript and
extensive pre-trial discovery. In Barr Rubber Products Co. v. Sun
Rubber Co., 277 F. Supp. 484 (S.D. N.Y. 1967), 279 F. Supp. 49
(S.D. N.Y. 1968), 425 F. 2d 1114 (2nd Cir. 1970), cert denied
400 U.S. 878 (1970) the District Court denied plaintiffs request
to join two additional parties and the Second Circuit affirmed that
decision focusing on the problems inherent in the delay and reliti
gation of complex law suits:
6 2
■ - [T] he denial o f Barr’s motion to join two additional
parties after four and one half years and six thousand pages
o f deposition testimony was not an abuse o f discretion. To
rule otherwise would have opened up a ‘Pandora’ s box’ of
discovery, further protracting an already unduly distended
case.” 425 F.2d 1127.
In another case, Benger Laboratories Ltd. v. R. K. Laws Co.,
24 F.R.D. 450 (E.D. Penn. 1959) the District Court granted a
motion to join two additional parties on the proviso that they
would be bound by all previous discovery and would not seek to
discover evidence relating to issues which had been covered by
previous discovery. The court was cognizant o f the inherent delay
caused by permitting a party to be joined with full privileges to
litigate and prepare the case from the beginning:
“ Normally, the court benefits from joining all possible liti
gants in a single suit to prevent a multiplicity o f actions.
There is a point in the proceedings, however, when the bene
fit derived from such a joinder is out weighed by the effect of
a postponement o f a final decision in the matter at the elev
enth hour” . 24 F.R.D. 452, n.2.
Thus we see that the courts have been reluctant to permit the
de novo expenditure o f judicial resources by reopening discovery
or litigation o f previously decided issues. Nevertheless, Petitioner
school districts now propose a complete retroactive rehearing of
all issues in the instant case. This would involve a trial with nearly
100 defendants, each represented by counsel, the vast majority of
whom would be interested in delaying the proceedings as long as
possible so that an effective remedy could be postponed indef
initely. I711
Petitioner school districts purport to request such hearings in
spite o f the fact that two triers o f fact — the District Court and
the Sixth Circuit — have concluded that de jure segregation existed
in the Detroit School System and that a Detroit-only remedy is
inadequate. Rule 1 o f the Federal Rules o f Civil Procedure states
1711 a result could set a precedent for other urban school district
desegregation cases where all outlying suburban school districts are joined and
are permitted to overburden and delay the litigation for the purpose of pro ,
longing an ultimate remedy.
63
that the public interest requires a “just, speedy, and inexpensive
determination o f every action” . This statement o f policy in con
junction with the Brown 1 I72] requirement o f “ all deliberate
speed” in the elimination o f segregated school conditions man
dates the denial o f Petitioner school districts’ demand for rehear
ing.
As has been pointed out, Petitioner school districts’ interest
in the instant litigation was aroused when the possibility o f a
metropolitan remedy was first enunciated. The Sixth Circuit has
vacated the District Court decision on the propriety o f a metro
politan remedy thus permitting Petitioner school districts to parti
cipate fully in hearings on the propriety o f such a remedy, l73J a
remedy which it is their common goal to defeat or delay inde
Brown v. Board o f Education o f Topeka, 347 U.S. 483 (1954).
The Sixth Circuit ruling parallels the court’s decision in Bradley v.
School Board o f the City o f Richmond, 51 F.R .D . 139 (D.C. Va. 1970). In
Richmond, an HEW plan for Richmond-only desegregation was determined to
be inadequate by the District Court. After that determination, the suburban
county school districts were joined as parties defendant in subsequent remedy
hearings involving consolidation of the Richmond school district with the
surrounding suburban school districts. The suburban school districts were not
permitted to relitigate the issue of de jure segregation or the inadequacy of
the HEW Richmond-only plan. Thus, both the Richmond court and the
Bradley v. Milliken court have concluded that joinder of surrounding school
districts is not necessary, either to protect the interests of those school dis
tricts or to provide a remedy, until a city-only remedy has been determined
to be inadequate.
In another school desegregation case, Higgins v. Board o f Education o f
the City o f Grand Rapids, (W.D. Mich. (A 6386), Slip Op., July 18, 1973,
Judge Engel joined the suburban school districts under Fed. R. Civ. P. 19 at
the very beginning of the litigation. It must be pointed out that Judge Engel
made this decision after the concept of a metropolitan remedy for urban
school district segregation had been publicized through the instant case and
through the Richmond case. At the time the instant case began, Judge Roth
would have been extremely clairvoyant had he predicted that a metropolitan
remedy was necessary. See , supra , at 54.
Along these lines it is noteworthy that Petitioner school districts were
aware of the Detroit desegregation case from its inception. Yet they chose
not to intervene from the beginning of the case, nor did they choose to act as
“mici curiae during the early Detroit de jure hearings. This was not so in
Riggins where the surburban school districts took an immediate interest in
the litigation, the apparent cause of that interest being the publicized use of a
metropolitan remedy in other urban school district desegregation cases.
64
finitely. Yet by allowing Petitioner school districts to participate
fully in hearings on the propriety o f a metropolitan remedy the
Sixth Circuit has only partially satisfied them. They now ask this
Honorable Court to sacrifice the public interest in providing an
adequate and speedy solution to the reality o f segregation in the
nation’s fifth largest school district so that Petitioner school dis
tricts may go through the delay and meaningless formality of
walking down the same path that the preceding defendants have
already traveled.
65
III.
THE STATE OF MICHIGAN THROUGH ITS ACTIONS
AND INACTIONS HAS COMMITTED DE JURE ACTS OF
SEGREGATION, THE NATURAL, FORESEEABLE, AND
PROBABLE CONSEQUENCES OF WHICH HAVE FOSTER
ED A CURRENT CONDITION OF SEGREGATION
THROUGHOUT THE DETROIT METROPOLITAN COM
MUNITY.
Petitioners William G. Milliken, et al., contend before this
Honorable Court that the findings o f the District Court and o f the
Court of Appeals for the Sixth Circuit with regard to Petitioners’
de jure acts o f segregation are erroneous. Petitioners have been ac
corded three hearings on this issue, the first being before the Dis
trict Court, the second before a three-judge panel in the Court o f
Appeals for the Sixth Circuit, and the third, an en banc rehearing in
that Court, thus clearly falling within the “ two Court rule.” 1741
Yet, Petitioners maintain that these findings are not supported by
the evidence.
Petitioners are attempting to play the “ old shell game” with
this Honorable Court and with the constitutional rights o f Re
spondents Ronald Bradley, et al. in isolating the specific findings o f
segregatory conduct on the part o f individuals, from the entire
pattern o f events created by the interaction o f all State defendants
in this litigation. Each action by the State, when viewed out o f the
context o f that pattern o f conduct, arguably might not support a
finding o f a constitutional violation in this litigation. However, in
school desegregation cases segregatory intent may be shown by a
course of conduct, the natural and foreseeable consequences o f
which, result in a current condition o f segregation. t75^
THE VIOLATIONS.
A. The Transportation of Black Children From the Carver
School District.
Petitioners suggest that the transportation o f black students
from the Carver school district under a contractual arrangement
[74] ~
Rehnquist J., (dissenting), Keyes v. School District No. 1, Denver, Colo -
tado, 413 U.S. 189, 264 (1973).
[75] Kis eyes, supra.
6 6
with the Detroit school district, could not have occurred with the
approval, tacit or express, o f the State Board o f Education. The
basis o f this contention is that the State Board o f Education could
not have had knowledge o f this action, for the simple reason that
even the Superintendent o f the Detroit school district was un
aware o f it. There is no direct evidence in the record to substanti
ate the fact that the then Superintendent o f the Detroit school
district was not informed o f the busing o f the Carver school dis
trict students past a closer all white high school to a black high
school. The only statement in support o f this is the hearsay testi
mony o f Dr. Norman Drachler. l76l Thus, it is impossible to deter
mine whether Dr. Drachler’s statements regarding the knowledge
or lack o f knowledge o f his predecessor in office are in fact cor
rect.
Secondly, whether in fact the then Superintendent o f the
Detroit school district had personal knowledge o f the Carver trans
portation arrangement is totally irrelevant to the issue o f the State
Board o f Education’s awareness o f it. The State Board o f Educa
tion has comprehensive statutory powers over contractual arrange
ments between school districts in enrolling non-resident pupils on
a tuition basis. These include the certification o f the number of
non-resident pupils enrolled, the districts in which such pupils
reside, the amount o f tuition charged and any other pertinent
information; 1771 the review o f transportation routes and dis
tances; t78l and disbursement o f transportation funds to the local
school districts involved. t79l With supervisory control over the
contractual arrangements and the allocation and disbursement of
funds, it is inconceivable that the State Board o f Education would
be unaware o f the racial characteristics and the arrangements of
the local school districts involved.
The Carver school district was a black district, located in the
western portion o f Royal Oak Township immediately adjacent to
the Oak Park school district. I80 ̂ Reference to a map o f these
school districts t811 clearly illustrates that the distance between the
f7 6 ] (Va 186).
f77] MCLA §388.629.
[? 8 1 MCLA §340.600.
179J MCLA § §388.621.; 388.643.
[80] Brjef o f Petitioner Grosse Pointe Public School System at 30, n. 57..
[8 1 1 See, Plate Number 2, infra at 1 16.
67
Oak Park school district and the Carver school district was less
than that between the Carver school district and the nearest white
high school, Mumford, in the Detroit school district. The distance
to the black Detroit high school, Northern, is even greater. Thus,
the conclusion that the State Board o f Education knew and under
stood the significance o f the Carver school district transportation
is inescapable. Its approval o f this arrangement directly involved
the State Board o f Education in discriminatory acts extending
across school district boundaries.
B. Allocation o f Transportation Funds.
Petitioners suggest that the de jure acts o f segregation found
to have been committed as a result o f the allocation o f transpor
tation funds by the State o f Michigan are improper, in light o f this
Honorable Court’s recent decision in Rodriguez 182J The provision
ot transportation funds solely to rural districts was held in that
case to have been a rational non-suspect classification. Many o f the
Michigan suburban school districts, including Petitioner school dis
tricts have been eligible for disbursements from the State Trans
portation Aid Act fund since its enactment in 1955.183] The
applicability o f Rodriquez in this cause is highly questionable, for
the urban-rural classification bears little relationship to the true
nature o f the school districts eligible for transportation aid under
that Act. Their eligiblity was established, despite the fact that
many o f these suburban school districts either were at the time o f
enactment, highly urbanized communities or have since become
so.
Thus, although these suburban school districts do not precise
ly fall within the categorization o f “ rural” , they continue to
receive transportation aid reimbursement from the State o f Michi
gan.
Secondly, the State Transportation Aid Act provides for
reimbursement or urban intra-city transportation costs if a parti
cular bus route necessitates the crossing o f a city or village line in
reaching the public school within the same school district to which
children are assigned. 1841 It is difficult to discern any rationale
L n San Antonio ^dependent School District v. Rodriguez, 411 U.S. 1 (1973)
1841 N° W MCLA s 388.1 171, formerly MCLA §38 8 .62 1 .
MCLA §388 .1171 (f).
6 8
whatsoever for the intra-city transportation allowed under that
provision o f the Act when in-city transportation reimbursement is
denied if the bus route does not happen to cross a city or village
line regardless o f distance to the public school.
Few o f the school districts, other than the Detroit school dis
trict, in Wayne, Oakland, and Macomb county bear any relation
ship to municipal boundary lines. Thus, it is questionable whether
the exception to intra-city transportation aid reimbursement has
any basis other than to discriminate against those school districts
whose boundary lines happen to coincide with a municipal bound
ary line. The Michigan Legislature subsequently amended the Act
to permit reimbursement for intra-city transportation. I85l The
change in the law was totally illusory for the reason that the Legis
lature failed to fund it adequately to cover the additional school
districts made eligible by the amendment.
The State Board o f Education was required to disburse the
existing funds only to the eligible school districts already receiving
funds for transportation, t86J The Legislature did subsequently
provide some funding for the intra-city transportation. However, it
was a negligble amount, in comparison to the total transportation
funding authorized under the State Transportation Aid A ctJ87)
In enacting amendments to the Transportation Aid Act, des
pite the fact that intra-city transportation was partially funded,
the Michigan Legislature evidenced further probably segregatory
intent by inserting a clause prohibiting allocations o f funds for
“ any cross busing to achieve a racial balance o f students within a
school district or districts.” t88^
Petitioner Grosse Pointe Public School System suggests that
the State Transportation Aid Act had no discriminatory motive or
intent, because o f the fact that the Grosse Pointe Public School
System, a virtually all white school district, also was denied any
allocation o f funds for pupil transportation, t89! However, Peti
[85] MCLA §3 8 8 .1 1 7 1 .
I8 6 ] (Ilia 31 -32) (MCLA §3 8 8 .1 1 7 1 )
[871 Act 101, §7 7 , Mich. Pub. Acts o f 1973, amending MCLA § 388.1 177
[88] MCLA §388.1 179. A similar provision was included in the Compensa
tory Education Provisions for student transportation. MCLA §388.1 139.
[891 grief of Petitioner Grosse Pointe Public School System, at 27.
69
tioner Grosse Pointe Public School System’s need for transporta
tion aid “ during the ‘so-called’ critical years” was nowhere near
as great as that o f the Detroit school district.
Transportation is provided by the Detroit school district at
the elementary school level if there exists physical dangers to stu
dents in reaching their schools. These physical hazards include:
railroads, rivers, major thoroughfares, and, in some cases, antag
onism from white residents living in an area through which black
children had to pass on the way to their assigned schools.!90! At
the junior and senior high school level, transportation aid was also
provided to parents o f school students living at the outermost edg
es of school attendance areas, who met certain indigency require
ments. I911 However, one o f the major expenditures o f the De
troit school district involved the transportation o f some 2,000 to
3,000 students per year for purposes o f relieving overcrowding o f
schools. All o f these expenditures for transportation were made
from the general operating fund o f the Detroit school district, f 921
Petitioner Grosse Pointe Public School System, however, has
no such transportation requirements. Other than transportation of
special education students, no transportation costs are incurred by
the Grosse Pointe Public School System. In fact, o f the 13,529
students enrolled in the Grosse Pointe school district in 1971, only
1,200 utilized public transportation facilities at their own expen
se, t93] js qUite evident that the Grosse Pointe school district
did not evidence a comparable need for transportation aid. Despite
the fact that the denial o f transportation aid has application to a
few other white suburban school districts, it is apparent that the
primary intended effect o f the Transportation Aid Act was to dis
criminate against the Detroit school district, and promote further
disparity in school district financing. The denial o f transportation
aid to the Detroit school district necessitated the allocation o f its
general operating funds to its non-state funded transportation
program. Thereby placing a greater tax burden on its residents,
with little or marginal improvement in the delivery o f educational
services by the Detroit school district for each dollar expended.
1901 (R. 2825).
[91] (R. 2817).
t92] (R. 2825-2827).
[93] (la 255-57).
70
On the other hand, those suburban school districts eligible
for transportation aid could allocate a greater percentage o f their
general operating funds to the delivery o f educational services for
each dollar o f tax revenue raised. Thus, the claimed rational classi
fication scheme o f the Transportation Aid Act, when applied to
the Detroit metropolitan area, had the effect o f promoting finan
cial inequalities between the Detroit school district and the subur
ban school districts. The fact that extreme disparities exist in the
racial characteristics o f the Detroit school district and the subur
ban school districts, as well, clearly illustrates the suspect nature
o f the claimed “ rational” classification o f the Transportation Aid
Act in its application to the Detroit metropolitan area. These con
sequences were obviously foreseeable by the State o f Michigan.
C. School Construction And Site Selection
1. Site Selection.
Petitioners contend that the supervisory powers over site se
lection in the State o f Michigan (found by the Court o f Appeals to
have “ fostered segregation throughout the Detroit Metropolitan
A re a ” )[9 4 ] are limited to ensuring that such school construction
conforms to health and safety regulations. However, Petitioners
William G. Milliken, et al., admit in their brief that specific powers
over site selection and school construction were vested in the Su
perintendent o f Public Instruction at least from 1949 to
1 9 6 2 . Thus, the State o f Michigan did have direct control
over school construction and site selection by local school districts
in Michigan.
It is further contended that there is no relationship between
the sites approved and reviewed by the Superintendent o f Public
Instruction during the aforementioned period and the school con
struction relied upon by the lower Courts in finding de jure segre
gation, for the reason that such construction occurred on and after
1962. However, it must be borne in mind that, as was stated by
l 94 95l (157a).
[95] Brief of Petitioner William G. Milliken, et al. at 34.
71
Deputy Superintendent Arthur Johnson, before the District Court,
during the hearings on the issue o f segregation, . . .we still live
with the results o f discriminatory practices.” I96l Despite the fact
that the actual construction o f schools may have commenced and
been completed subsequent to the relevant period o f direct con
trol over site selection by the Superintendent o f Public Instruc
tion, there is evidence that site selection in the Detroit school dis
trict occurred, in many instances, several years before construction
was actually commenced on those sites. (97J
As a result, it is conceivable and probably that many o f the
site selection decisions made by the Detroit school district,
relating to school construction after 1962, had in fact been
directly reviewed by the Superintendent o f Public Instruction,
under relevant statutory authorization.
Nevertheless, subsequent directives, policy statements, and
reports issued and promulgated by the State Board o f Education
subsequent to 1962 (the date as o f which the explicit statutory
grant of control to the Superintendent o f Public Instruction was
amended), indicate that the State Board o f Education deemed itself
to be a repository o f that same power by implication.
In 1966, the State Board o f Education, in conjunction with
the Michigan Civil Rights Commission, issued a Joint Policy State
ment which required that:
“ Local school boards must consider the, factor o f racial bal
ance along with other educational considerations in making
decisions about selection o f new school sites, expansion o f
present facilities. . . .Each o f these situations presents an
opportunity for integration.” f98l
This policy was reaffirmed in the State Board o f Education’s
School Plant Planning Handbook which was promulgated under
[%1 (Ilia 229).
[971 (R. 2 8 4 4 ;.2 9 6 1 ).
1981 (145a).
72
the penumbra o f powers delegated to the State Board o f Educa
tion in the aforementioned “ health and safety” statute:
“ Care in site location must be taken if a serious transporta
tion problem exists or if housing patterns in an area would
result in a school largely segregated on racial, ethnic, or socio
economic lines.”
Although Petitioners William G. Milliken, et al. contend that
these policy statements were merely “ admonitions” to local
school districts, and not legally enforceable rules, the argument
loses much vitality when one considers that the language utilized
therein, by insertion o f the word “ must” , suggests a directive
rather than a mere admonition.
The State Board o f Education has further stated in its Annual
Report o f 1970110°J that its powers in reviewing school construc
tion plans and site selection includes educational and financial
evaluations o f the proposals.
If in fact the State Board o f Education does not have direct
supervision and control over site selection and school construc
tion, other than to assure health and safety standards as the rele
vant legislation imports on its face, what possible explanation car.
be given for the issuance o f the foregoing statements and direc
tives? The promulgation o f fatuous platitudes by a state agency
exercising, at the very minimum, supervisory powers, if not actual
authority to control education in the State o f Michigan becomes
all the more invidious, when it involves the fundamental consti-
tutional rights o f the school children o f the State o f Michigan.
t " ] (145a)
[100] Ann Report> Michigan Department of Education, (1970) at p. 17:
“ The Department of Education is required by law to approve plans for
all public and non-public school construction and to approve private oc
cupational schools and private boarding schools.
* * *
“ Short-range goals for this program would include the educational eval
uation of all public and non-public school buildings of this state, a deter
mination of present and feasible school building needs for all public
school districts, and a determination of financial ability of all public
school districts to meet their present and feasible school building needs.”
73
Petitioners also contend that, because the “ health and
safety” statute mandated no directives to “ maximize integration” ,
there was no duty on the part o f the State Superintendent o f Pub
lic Instruction to take that factor into consideration in exercising
the power o f approval and review o f site selection. There is no
constitutional duty to “ maximize integration” . 11011 However,
Petitioners totally misconstrue their obligations in the exercise o f
powers under state statutes. Regardless o f the characterization o f a
particular statute, the State is not exculpated from acting under
that statute in an unconstitutional manner.11021 The statutory
power to approve site selection, may not be exercised by state and
local authorities in a manner which will foster segregation through
out the Detroit Metropolitan area. A contrary result would insulte
state action, under state law, from the commands o f the Constitu
tion.
Petitioners further contend that, as to site selection after the
amendatory removal o f direct supervision from the Superinten
dent of Public Instruction, the “ admonitions” promulgated by the
State Board o f Education imposed no requirements to “ maximize
integration.” Again, however, Petitioners misconstrue their obliga
tions under the Constitution. Their duty is to act in a manner not
violative of basic constitutional rights, whether such action is
based upon statute, rule, or “ admonition.” Although such “ ad
monitions” may impose a greater obligation upon state action
than the Constitution, they do not abrogate the duty o f state offi
cers to meet minimal constitutional requirements. The fostering of
state segregation in site selection throughout the Detroit metropoli
tan area not only fails to meet the self-imposed standards o f “ max
imizing integration” , but also does not satisfy their obligations
under the Constitution. * ll
' c f- Bell v. City School o f Gary, 213 F. Supp. 819 (N.D. Ind.), aff’d,
514 F-2d 2°9 (7th Cir. 1963), cert, denied, 377 U.S. 924 (1964).
ll°2] r t iC/. Lee v. Nyquist, 318 F. Supp. 710 (W.D.N.Y. 1970), affd , 402
935 (1971); Alabama v. United States, 314 F. Supp. 1319 (S.D. Ala.),
aPPeal dismissed, 400 U.S. 954 (1970), wherein the locally called “ Freedom-
0 -C hoice Acts” were invalid.
74
2. School Construction
School construction in the State o f Michigan is financed at
least in part through sale o f municipal construction bonds. l103l
The issuance and sale o f these bonds must be approved by the
Municipal Finance Commission,l104! a state agency, the member
ship o f which includes the Governor o f the State o f Michigan, the
Superintendent o f Public Instruction and the Attorney General of
Michigan. I105]
Thus, Petitioners William G. Milliken, etal., exercise direct
supervisory control over the approval o f all school construction in
the State o f Michigan. 11061 In participating as members o f that
body, Petitioners cannot contend that they do so without knowl
edge o f the policies enunciated by other state agencies, with re
gard to school construction and site selection. This is especially so
in the case o f the Superintendent o f Public Instruction who must
be assumed to have first hand knowledge o f the policies, directives
and mandates o f the State Board o f Education with regard to
school construction and site selection. It is apparent that the very
reason for his membership on the Municipal Finance Commission
is to ensure that this knowledge will be a part o f the deliberations
leading to the approval o f school bonding construction proposals
by local school districts. Thus, there exists direct involvement of
this state agency and Petitioners, William G. Milliken, et al., in the
approval o f school construction and site selection which “ fostered
segregation through the Detroit metropolitan area.”
Secondly, the District Court held that the limitation on
bonding imposed by the State o f Michigan created an inequality of
educational opportunity between the Detroit school district and
all other school districts throughout the state. (1071 Petitioners sug
gest that such a finding by the District Court was improper, in
light o f this Honorable Court’s recent ruling in Rodriguez. In
t 103l MCLA § §3 4 0 .6 8 3 -.6 8 4
[104] (Ilia 156-7).
[105] MCLA §132.1
I10 6 ! (Ilia 157)
[107] (i52a).
̂ San Antonio Independent School District v. Rodriguez, 411 U.S. 1
(1973).
75
equality of school district financing is not constitutionally imper
missible, if there is a rational basis for such statutory classification.
However, the imposition o f a lower bonding limit by the State on
one school district in the entire State o f Michigan raises a serious
question as to the rational basis o f that statutory classification. As
school construction in Michigan is financed, in part, through bond
ing, with the balance made up through local tax millage efforts,
the lower limit on bonding power o f the Detroit school district
had the necessary, probably and foreseeable consequence o f plac
ing greater millage demands on the real property tax base o f the
Detroit school district.
There is ample evidence o f the fact that school construction
and site selection are considerably more costly in the Detroit
school district, than in most school districts throughout the state.
One of the major factors in that increased cost is the acquisition
and clearance o f school sites. Costs o f site acquisition and clear
ance were approximately $100,000 per acre in the Detroit school
district, due to the dense residential character o f the neighbor
hoods in which schools were expanded and constructed, t109J
Coupled with the minimum site standards o f 5-1/2 acres for ele
mentary school sites, 20 acres for junior high school sites, and 30
to 35 acres for high school sites, 101 the lower bonding limits
placed greater financial burdens on property tax millages for
school construction.
There is also ample record evidence, however, that the gen
eral operating expenses o f the Detroit school district are more
costly than those o f other school districts in the State o f Mich
igan.! 1 111 The Detroit school district is, as a result, required to and
does make higher general fund expenditure per pupil than most
of the other school districts. [112] The major factors in such in
creased expenditures for teacher salaries were the highly competi
tive recruitment o f black faculty; f113] and the disadvantageous
11091 (R. 2 9 6 8 ).
11101 (Hla 8 7 -8 ).
11111 (R. 54 -65 ;R . 4 5 4 3 -4 5 5 9 ).
1 Brief of Petitioner William G. Milliken, et al., at 28.
Brief o f Petitioner William G. Milliken, et al., p. 28-9.
76
The general operating expenses o f the Detroit school district
are provided by property tax millages and direct state aid. By
lowering the bonding limit in the Detroit school district, greater
burdens in meeting the higher costs o f school construction and site
selection are placed upon property tax millage capabilities. On the
other hand, increased costs in general operating expenses within
the Detroit school district also place a greater burden upon prop
erty tax millage capabilities. Thus, general operating expenses
compete with school construction funding in property tax mil
lages, which when combined with a lower bonding capability in
the Detroit school district, results in forcing the local elector to
choose, at the maximum taxing effort possible, between school
construction or operating expense millages. Either choice, how
ever, will result in less value received per tax dollar expended, in
comparison to other school districts having higher bonding limits.
In those school districts, the higher bonding limit eases the burden
on school construction millages, thereby increasing the taxing level
for general operating expenses. In either event, the suburban
school districts receive greater financial benefits from this classifi
cation scheme. However, when this classification is also based
upon differing racial characteristics between the Detroit school
district and other school districts, the basis for that classification
becomes suspect. Thus, the differential in bonding limitations falls
subject to criticism similar to that raised with regard to the Trans
portation Aid Act. 1114 1151
In summary, it is apparent that the State Board o f E ducation
and other state officers, Petitioners herein, have built upon seg
regated housing patterns both within and without the Detroit
school district, through the exercise o f supervisory powers over
site selection, school construction and bonding and the discrimina
tory application o f state laws between the Detroit school district
and other local school districts.
teaching conditions in Detroit during the 1960’s. [*14]
[114] Fjn(}jngS Gf Facts, 23 & 24, (3 la).
gee discussion, supra p. 67-70.
77
D. The Enactment of Act 48
Further indication o f the de jure acts o f segregation by the
State of Michigan is embodied in Act 48, Mich. Pub. Acts o f 1970,
an unambiguous demonstration o f the State’s segregatory intent as
to Detroit’s schools.
Petitioners contend that there were no segregatory motiva
tions in the enactment o f Act 48, but rather that it was merely an
amendatory decentralization measure. Petitioner Grosse Pointe
Public School System has attempted to characterize the enactment
of Act 48 as an act “ to facilitate the mechanics o f decentraliza
tion” , 1116] because it was passed as an amendment to Act 244, Mich.
Pub. Acts o f 1969, the original decentralization legislation o f the
Michigan Legislature. But the factual context and the actual langu
age of Act 48 underscore its true intent.
Under the directives o f Act 244, the Detroit Board o f Educa
tion, in decentralizing the administration o f schools into seven re
gional school districts within its borders, attempted to chart a
course o f action independent o f the existing policies o f the State
in perpetuating a condition o f segregation within the Detroit
school district. It did so by factoring in the criterion o f racial in
tegration in drafting the boundary lines o f the proposed regions
within its borders. U17 ]
In addition, the Detroit Board o f Education proposed and ap
proved what is now known as the April 7th Plan, a partial integra
tion plan for over half o f the high schools in the district, which
was to be accomplished by redrawing attendance patterns on an
east-west, rather than on a north-south basis as had previously
existed. The April 7th Plan was poorly received by certain seg
ments of the Detroit community, resulting in the initiation o f re
call petitions against several members o f the Detroit Board o f Edu
cation who had supported the proposal.
Before the results o f the recall petitions were in, and before
the April 7th Plan could be implemented for the ensuing school
[ 116]
[117]
Brief of Petitioner Grosse Pointe Public School System at 20.
See generally, Guidelines For School Decentralization, Detroit Public
c ools, Office for School Decentralization.
78
year, the Michigan Legislature enacted, and the Governor signed,
Act 48 into law. It not only re-established the basic decentraliza
tion plan o f Act 244, but it also suspended implementation of the
April 7th Plan and eliminated two existing integration programs of
the Detroit school district.
Petitioners attempt to innocently characterize the Act as a
good faith administrative measure (Brief o f Petitioner Grosse
Pointe Public School System at p. 21), but fail to quote that por
tion o f the Act which enacted into law a mandatory neighborhood
school attendance policy with a “ freedom o f choice” escape provi
sion superimposed on the old north-south attendance zones:
“ The implementation o f any attendance provisions for
the 1970-71 school year determined by any first class school
district board shall be delayed pending the date of com
mencement o f functions by the first class school district
boards established under the provisions o f this amendatory
act but such provision shall not impair the right o f any such
board to determine and implement prior to such date such
changes in attendance provisions as are mandated by practical
necessity. In reviewing, confirming, establishing or modifying
attendance provisions the first class school district boards es
tablished under the provisions o f this amendatory act shall
have a policy o f open enrollment and shall enable students to
attend a school o f preference but providing priority accep
tance, insofar as practicable, in cases o f insufficient school
capacity, to those students residing nearest the school and to
those students desiring to attend the school fo r participation
in vocationally oriented courses or other specialized curricu
lum.” Act 48, §12, Mich. Pub. Acts o f 1970. [emphasis
added].
Section 12 o f Act 48 had the immediate intent and avoidable
effect o f preventing the desegregation o f twelve o f D etro it s
twenty-one high schools. It abrogated the Detroit Board’s policy
which required that the program of transportation to relieve over
crowding in the school system be predicated upon transporting
students to the nearest school in which integration w o u ld be
79
improved.!1181 The second nugatory effect o f the Act was the
elimination o f the Detroit Board requirement that, under the open
enrollment program, students transferring from one school to
another could only do so if the transfer would promote the inte
gration of the school to which the student was transferring to.
Faced with this mandate from the Michigan Legislature,! 1191
at whose sufferance local school districts exist, the Detroit Board
of Education had no choice but to comply. The Act’s resulting
effects were clear and decisive. It eliminated existing and halted
further integration efforts within the Detroit school district. Peti
tioner Grosse Pointe Public School System, however, attempts to
blunt the obvious segregatory aspects o f this enactment by sug
gesting that it was met with the virtually unanimous approval o f
all members o f the Michigan Legislature, both black and white.
However, as the events o f the day clearly indicate,!1201 that
vote was reached as a result o f a compromise o f a long and bitter
deadlock over the appropriate response by the Legislature to the
concern in the City o f Detroit, created by the proposed April 7th
Plan.
Indeed, there is evidence that many Legislators agreed to this
compromise only because o f a belief, subsequently substantiated
by the Court o f Appeals for the Sixth Circuit, ! 121 1 that the por
tions of the Act, namely Section 12, directed to the April 7th Plan
were clearly unconstitutional.!1221
11181 See generally W. Pindur, “ Legislative and Judicial Rules in the Detroit
School Decentralization Controversy” , 50 J. Urban Law 53 (1972).
111,11 Mich. Const, art. VIII § 2 , wherein the legislature is charged with the
sole power and authority to maintain and support a system of public educa
tion.
11201 Pindur, op. cit.
11211 Bradley v. Milliken, 433 F.2d 8 9 7 ,9 0 4 (6th Cir. 1970), wherein it was
held that there was a sufficient causal nexus for striking down §12 as viola
tive of the Fourteenth Amendment.
11221 Pindur, op. cit. at 66-67.
80
Despite the fact that the lower Courts found segregatory in
tent in the enactment o f Act 48 and the causal nexus o f the fore
seeable consequences o f such action in the overt frustration of in
tegration policies, Petitioners Grosse Pointe Public Schools and
Milliken, et al., suggest that the effects were nontheless de
minimus. ■
Indeed, it is claimed that following the suspension o f Section
12 o f Act 48, there no longer existed a legislative mandate for the
Detroit Board o f Education not to implement its proposed April
7th plan. Petitioner Grosse Pointe Public School System further
characterized the injunction o f the April 7th Plan as being of ex
tremely limited duration, thereby permitting the Detroit Board of
Education ample time to reinstate the plan if it so desired.
However, this loses sight o f the fact that the Detroit school
district was in the midst o f a new academic year. Midyear changes
in the assignment o f students to particular schools would have re
sulted in massive disruptions in the educational programs of the
students concerned.
The suspension o f the proposed April 7th Plan had the rea
sonable, probable and foreseeable effect o f deferring any possible
implementation o f an integration plan to the 1972-73 academic
year. The Detroit Board o f Education, however, proposed an alter
native plan to the District Court which it believed would accom
plished greater integration than the April 7th Plan, without arous
ing the antagonism in the community. The District Court, as
affirmed by the Court o f Appeals, approved this plan as a viable
alternative, t1231 Under these circumstances, the actions of the
Detroit Board o f Education were both reasonable and proper.
Petitioners further suggest that, because the enactment of
Act 48 had no discernible effect in increasing segregation within
the Detroit school district beyond that created by changing demo
graphic patterns, no constitutional violation was committed. We
submit that there is no basis in fact or in law for such a conclusory
opinion.
First, Act 48 frustrated the implementation o f a desegrega
tion policy, with the resulting effect o f the perpetuation ofsegre-
[123] See Bradley v. Milliken, 438 F.2d 945 (6th Cir. 1971).
81
gated schooling for an additional academic year. Secondly, Act 48
is a clear example o f the discriminatory treatment which Detroit,
as the only first class school district in the State o f Michigan, is
vulnerably susceptible to under the dictates o f the Legislature, i.e.,
perceptible, stigmatic, uneven treatment.
It is readily apparent that the enactment o f Act 48 by the
State had the probable and necessary effect o f maintaining and
perpetuating a condition o f segregation in violation o f the Four
teenth Amendment.
E. State Action Through Local School Districts.
Under Michigan law local school districts are mere instru
mentalities and agents o f the state. D24!
Thus, actions o f the state are binding on the Detroit Board
because the Detroit Board is the agent o f the state. Likewise,
actions of the Detroit Board are binding on the State.
Specifically, the Courts below found that the Detroit Board
of Education: (1) maintained optional attendance zones in neigh
borhoods undergoing racial transition and between high school at
tendance areas o f opposite predominate racial composition, which
had the effect of fostering segregation; (2) built, with the impri
matur of the State Board o f Education and Municipal Finance
Authority, a number o f schools which resulted in continued or in
creased segregation; (3) maintained feeder patterns that resulted in
segregation; and (4) bussed black pupils past or away from closer
white schools with available space, to black schools. (25a), (1 10a).
It is true that the Detroit Board o f Education did argue in
both the District Court and in the Court o f Appeals that it com
mitted no de jure acts o f segregation. However, it has chosen not
to appeal the issue o f violation simply because o f this Court’s pro
nouncement in Keyes, coupled with the findings o f the courts
below. Even if the Detroit Board committed no de jure acts it still
would be bound by the actions o f the State o f Michigan acting
alone.
State action is the Alpha and Omega. Whether it was the
See discussion, pp. herein.
8 2
State o f Michigan acting alone or in conjunction with its agent, the
Detroit Board, or The Detroit Board acting alone, the sum total as
found by the Courts below is that the State, and only the State,
violated the constitutional rights o f Detroit children which re
sulted in racial isolation.
In summary, from the initial participation in the Carver
school district transportation, through discrimination in transpor
tation funding, school construction and site selection approval, to
enactment o f Act 48, Petitioner William G. Milliken, et al. have
participated in segregatory busing practices across school district
boundary lines, built upon segregatory housing patterns, and frus
trated integration efforts o f local school officials. The discrimina
tory intent has thus been shown. A current condition o f segrega
tion exists. The actions o f Petitioners William G. Milliken, et al,
had the natural foreseeable consequences o f causing the current
condition o f segregation. As the Courts below noted, a clearer vio
lation o f constitutional rights by the State o f Michigan could not
be shown.
83
IV
DETROIT-ONLY DESEGREGATION PLANS ARE NOT
CONSTITUTIONAL REMEDIES BECAUSE THEY DO NOT
ELIMINATE, “ ROOT AND BRANCH,” THE VESTIGES
OF THE UNCONSTITUTIONAL DETROIT SCHOOL SEG -
REGATION.
A desegregation plan limited to the boundaries o f the Detroit
school district will not desegregate a single school. It will not do
so now. It will not do so hereafter. Both the District Court and the
Court of Appeals accepted that fact after examining the best
Detroit-only plans that the plaintiffs or the Detroit Board o f
Education were able to offer. D25!
There was an excellent reason for those Courts to reach that
conclusion: A Detroit-only plan cannot eradicate the objective
vestiges o f a segregated system nor can it eliminate the human
perception that the schools in Detroit are black schools.
ANY DETROIT-ONLY REMEDY WOULD LEAVE
THE DETROIT SCHOOL SYSTEM RACIALLY
IDENTIFIABLE AS BLACK THEREBY NOT RE
MOVING THE VESTIGES OF THE STATE IMPOSED
SEGREGATION.
The racial identifiability o f a school system, imposed by state
action, presents a prima facie case o f unconstitutional segregation
in which the vestiges o f racial identifiability must be eliminated,
root and branch.” Green v. County School Board o f New Kent
County, 391U.S.430, 435 (1968); Swann v. Charlotte-Mecklen-
berg Board o f Education, 401 U.S.l, 18 (1971); Wright v. Council
of City o f Emporia, 407 U.S. 451,465 (1972).
Findings of Fact and Conclusions o f Law on Detroit-only Plans of
desegregation. (53a); aff’d, Bradley v . Milliken, 484 F.2d 215 (6 th Cir. 1973)
U 73a).
84
A Detroit-only plan will remedy nothing. The segregated con
dition is too massive and deeply rooted. After extensive reassign
ment o f students, the Detroit school system will remain racially
identifiable as black, hemmed in by nearby neighboring white sub
urban school systems in a highly inter-related metropolitan com
munity bound together by common social, economic and political
spheres.
In shaping an effective remedy, this Honorable Court has
held that it is permissible for a trial judge to consider the racial
composition o f the school system as a whole. Swann v. Board of
Education, supra, at 25; North Carolina Board o f Education v.
Swann, 402 U.S. 43 (1971). The lower courts scrupulously ad
hered to this principle when they rejected a Detroit-only Plan.
The percentage o f the black pupil population in Detroit rose
from 45.8% in 1961 to 64.9% in 1971 H26] In 1972, the black
pupil population rose to 67.3%J127 * 129 *̂ And in 1973, the black pupil
population had reached 69.8%. 1128] Even more illustrative of the
racial identifiability o f the Detroit public school system is the fact
that as o f the last federal census, the total racial population of
the City o f Detroit was 55.2% white to 43.9% black t129] ancj the
metropolitan student racial composition was 81% white to 19%
black. [1301
The District Court correctly concluded that no amount of
shuffling o f Detroit pupils within the boundaries o f the City of
Detroit would effectively remedy the racial identifiability caused
by de jure acts o f segregation. Coupled with the fact that Detroit
is racially identifiable, is the finding o f the District Court that the
implementation o f any Detroit-only plan, even a 65% — 35% black
t 1261 Exhibit P.C. 6 (Va 16).
f * 2 7 ̂ Racial-Ethnic Distribution Of Students and Employees in the Detroit
Public Schools, October 1972, 3.
[ H 8 ] Raciai-Ethnjc Distribution o f Students and Employees in the Detroit
Public Schools, October, 1973.
[129] Ruling On Issue of Segregation, 338 F.Supp 582, 586 (E.D. Mich,
1971) (21 -22a.).
[ 1301 Bradley v.Milliken, 484 F.2d 2 1 5 ,2 5 0 (6th Cir. 1 973) (173a.).
85
- white assignment, would accelerate resegregation. t1313 It should
be noted, however, that under the existing racial composition o f
the Detroit schools, a 65% - 35% plan would no longer be even
mathematically possible, much less realistically workable.
The lower courts found that the faculty racial ratios in
Detroit met the constitutional test o f a balanced staff and is an
exemplary example o f staff integration. I1323 However, it further
emphasized the racial identifiability o f the Detroit school system
in contrast to the faculties o f the relevant surrounding suburban
school systems. Of the fifty-two school districts in the proposed
metropolitan remedy plan, 40 districts had less than 1% black
faculty members. I133 3 Of the same 52 districts, 47 had less than
1% black administrators.^134]
As between Detroit and the other 52 school districts, Detroit
has 86% of all black teachers and 82% o f all black administrators
in the relevant metropolitan area.t1353 This is true, even though
the entire Detroit system has only 34% o f all teachers and 38% of
all administrators in the relevant metropolitan community. 11363
Petitioner Grosse Pointe Public School System complains that
Respondents are asserting a new constitutional right, i.e. freedom
[131] Findings o f Fact And Conclusions O f Law On Detroit-Only Plans Of
Desegregation, Finding No. 8. (55a). The experts who testified as to a
Detroit-only plan, agreed that resegregation would ensue under a plan in
which the pupil ratio was 65% Black to 35% White. Testimony O f Dr. James
W. Guthrie; (IVa 112, 113); Dr. Betty Ritzenhein (IVa 57, 58); Dr. Gordon
Foster (IVa 88-89). The reason for the exodus o f whites results from a school
passing a “ tipping point” which is somewhat between 35% — 55% black.
Testimony of Dr. Betty Ritzenhein (IVa 57, 58); Testimony of Dr. James
Guthrie (IVa 109). A plan which left the Detroit schools 65% black would
obviously accelerate resegregation since the tipping point has been surpassed
by at least 10%.
̂ 323 Ruling on Issue of Segregation, 338 F. Supp 582, 5 9 0 -5 9 ' (E.D. Mich,
D71) (3 l-32a).
t133l P.M. 13, (Va 105-109)
[1343 id.
[1353 id
[13fi] id.
8 6
from attending a racially identifiable school. I '37! Such an inter
pretation is patently false and misapprehends the nature of this
case. Over and above the fact that Petitioner Grosse Pointe Public
School System has chosen to blindly ignore the numerous findings
o f fact and conclusions o f law o f the two lower courts which
found pervasive de jure segregation, its reliance on the holdings of
Spencer v. Kugler, 326 F. Supp. 1235 (D.N.J. 1971) aff’d 404
U.S. 1027 (1972); Wright v. Council o f the City o f Emporia, 401
U.S. 451 (1972); and United States v. Scotland Neck Board oj l
Education, 407 U.S. 484 (1972), is inapposite.
Petitioner Grosse Pointe Public School System confuses racial 1
identifiability as a vestige with racial identifiability as a violation
o f the Constitution. This is not a racial balance case. Rather, con- j
stitutional violations have been found. An effective remedy must I
issue. To characterize the racial identifiability o f the Detroit
school system as something other than a vestige o f de jure segrega
tion runs contrary to Petitioner Grosse Pointe Public School
System’s own admonitions against confusing the remedy with the
violations — something which it has obviously done with its afore
mentioned proposition.
This misunderstanding o f constitutional law is evidenced by
Petitioner Grosse Pointe Public School System’s reliance oa
Spencer, supra. Spencer was a violation case that held that racial
imbalance, existing through no discriminatory action of state
authorities, did not violate the Constitution. There were neither
segregatory intent nor segregatory acts in Spencer.
In the instance case, two Federal Courts have agreed that
there was pervasive de jure segregation which has led to the racial
identifiability o f the entire Detroit school system. Unlike the#
facto segregated conditions existing in Spencer, this appeal in
volves the vestige o f racial identifiability caused by de jure acts of
segregation for which this Flonorable Court has consistently held
an effective remedy must issue. Brown v. Board o f Education, 349
U.S. 294 (1955); Green, supra; Swann, supra; Davis v. Board oj
Commissioners o f Mobile County, 402 U.S.33 (1971); Wright-
supra.
[1 3 7 ] g r ie f F or P etit ion er G rosse P oin te P u b lic School System, at page 39.
87
Additionally, Petitioners’ startling assertion that this court in
Wright, supra, and in Scotland Neck, supra, impliedly held that a
plan of desegregation limited to a predominately black school sys
tem is not insufficient to remedy constitutional violations o f its
students’ rights to equal protection not only misconstrues the
factual setting o f the aforementioned cases, but also misinterprets
the legal rationale employed by this Honorable Court in reaching
its decisions.
In both Wright and Scotland Neck this Court was presented
with the remedy stage o f a school desegregation suit. In both cases
the desegregation area encompassed the entire student population
of a county school system, the relevant community. The racial
ratios approved in Wright and Scotland Neck reflected the entire
student population in those communities.
The lower courts in the instant case found the relevant com
munity to be the Detroit metropolitan area. A plan limited to the
hemmed-in city limits o f Detroit would result in Detroit being ra
cially identifiable as a black school system within this relevant
community.
Further, the District Court in Wright received data which
showed that the county desegregation area had a racial composi
tion of 34% white and 66% black students. If the City o f Emporia
had established its own splinter system the City o f Emporia
schools would have 48% white and 52% black while the county
schools would have been 28% white and 72% black. This Court
determined that given the splinter district, the percentage of
whites in the county schools might be anticipated to drop due to
enrollment in private academies and the movement o f whites to
the city’s school.
Thus, with the establishment o f a separate Emporia City
School System, the desegregation area would not reflect the rele
vant county-wide racial ratio and would frustrate the dismantling
of the dual school system and perpetuate racial segregation, t138'
̂ See also, United States v. Scotland Neck City Board o f Education,
supia, wherein it was held that the options to dismantle a dual school system
must be judged according to whether it hinders or furthers the process of
school desegregation.” 407 U.S. 489.
8 8
The courts below employed an inverse application of the
above-quoted legal rationale in rejecting a Detroit-only remedy.
The Detroit school system was found to be a de jure segregated
system; the vestige o f such segregated condition being the racial
identifiability o f the system. A Detroit-only remedy would be
ineffective in converting Detroit to a unitary system for the rea
sons that the student bodies anticipated by such a plan would
leave Detroit identifiably black in contrast to the majority white
population ratio o f the City o f Detroit, and in greater contrast to
the overwhelmingly white population o f the relevant metropolitan
area.
A DETROIT-ONLY PLAN LEADS TO RESEGREGA
TION RATHER THAN CONVERSION TO A UNI
TARY SCHOOL SYSTEM.
Petitioners, Allen Park Public Schools, et. al. and William G.
Milliken, et.al. rely solely on selected excerpts o f Dr. Gordon
Foster’s testimony in support o f their ill-conceived argument that
a Detroit-only plan is an effective remedy. Yet, said Petitioners fail
to inform this court that Dr. Foster’s endorsement o f a Detroit-
only plan, prepared by him, was qualified by the fact that a metro
politan plan, under the circumstances o f this case, was in his
opinion a more effective plan o f desegregation.
“ In my opinion a metropolitan solution would certainly be a
preferable one and would offer greater stability in the long
run and more meaningful education and desegregation.” I1 ̂
Dr. Foster’s testimony reveals that even under his own plan,
Detroit-only would not provide the greatest possible degree of
desegregation in view o f the alternatives available. Green, supra, at
439, Davis, supra, at 37; Wright, supra, at 468-469.
The expert opinion o f Dr. James Guthrie and Dr. Betty
Ritzenhein totally rejects any alleged effectiveness o f a Detroit-
only plan to desegregate the City’s schools and assure a unitary
system now and hereafter. 139
[139] Testimony of Dr. Gordon Foster (IVa IQ),see also (IVa 91). In fact.
Dr. Foster now embraces a metropolitan plan of desegregation as evidenced
by his recent article, “ Desegregating Urban Schools: A Review of Techni
ques,” 43 Harv. Educ. Rev. 5 (1973).
89
“ Q. Dr. Guthrie, would you recommend to this Honorable
Court that it should accept this plan for the City o f Detroit?
A. I would not.
Q. Would you tell the Court why?
* * *
A. If the effort is to eliminate a segregated school system
for whatever reason, if that is the intent that it is my belief
that this will not eliminate a segregated school system, but
rather will lead only to greater segregation in the City o f
Detroit......... should such a desegregation plan be announced,
and every year thereafter when it is implemented, my predic
tion would be that the number o f white persons residing in
the city o f Detroit and the number o f white children avail
able to attend its schools would decrease. I base that predic
tion on the behavior o f whites in other desegregated situa
tions, primarily in the south, but also in the north o f this
nation.
When faced with the possibility that their children will be
attending schools which have a large proportion o f blacks and
whites, frequently, very frequently, they will leave.”
Under these circumstances, the admonition o f this court in Green,
supra, is dispositive.
“ If there are reasonably available other ways. . .promising
speedier and more effective conversion to a unitary, non-
racial school system ‘freedom o f choice’ must be held unac
ceptable.” Id. at 441.
In addition to failing to convert to a unitary, non-racial
school system, a Detroit-only plan will lead to an invidious,
judicially sanctioned resegregation o f the Detroit school system
[>401 Testimony of Dr. James Guthrie (IVa 111-112). Dr. Ritzenhein also
rejected Dr. Foster’ s Detroit-only plan for similar reasons:
“ Q. Do you believe- that a plan that puts 65 percent black children and
35 percent white children in each school would desegregate Detroit?
A. It would not.
Q. Why:
A. It would result in a re-segregated situation.” (IVa 57).
90
rather than dismantling the dual nature o f the schools and must be
rejected.t141]
Tangible proof o f the futility o f employing a Detroit-only
plan to remedy the massive segregated condition in Detroit schools
was the expert testimony o f Dr. Guthrie relative to the well estab
lished “ tipping point” concept, viz., the black-white pupil popula
tion ratio at which white students begin to leave the school sys
tem. Under the Plaintiffs’ proposed Detroit-only plan for the
1972-73 school year, the approximate theoretical racial ratio goal
would have been 65% black and 35% white studetn enrollment.
Today, however, the white student population has declined to
28% and promises to continue its downward trend. Dr. Guthrie
fixed the “ tipping point” in a band where the black student popu
lation attains a percentage o f between 35% and 55%. After this
tipping point is reached, the following occurs:
“ . . . [sjomewhere between 35 and 55 percent black. When a
school is more than that, then somewhere in that band whites
become fearful for some rational and irrational reasons and
when can they leave.” (IVa 109).
Dr. Ritzenhein confirmed Dr. Guthrie’s “ tipping point” con
cept and that there would be a decrease in white enrollment under
a Detroit-only plan, thus causing resegregation in the Detroit
school system. (IVa 57-58).
Resegregation and racial identifiability were prime reasons
for the District Court’s rejection o f Detroit-only plans:
[1411 In Green, supra this Court reaffirmed that a plan must bar future
segregation:
“ We bear in mind that the Court has not merely the power but the duty
to render a decree which will so far as possible eliminate the discrimina
tory effects of the past as well as bar like discrimination in the
fu tu r e .” [emphasis added) 391 U.S. 433 n.4 (citing Louisiana v.
United States, 380 U.S. 145, 154 (1965)).
See also Goss v. Board o f Education, 373 U.S. 683 (1963), free transfer
provision held unacceptable; Davis, supra, free transfer plan held ineffective,
Swann, supra, pairing and geographic zoning rejected due to ineffectiveness,
Monroe v. Board o f Commissioners, 391 U.S. 4 5 0 (1 9 6 8 ) , free transfer plan
rejected because of ineffectiveness.
91
“ 7. The plan would make the Detroit school system more
identifiably Black, and leave many o f its schools 75 to 90 per
cent black.
“ 8. It would change a school system which is now Black
and White to one that would be perceived as Black, thereby
increasing the flight o f Whites from the city and the system,
thereby increasing the Black student population.” !142!
Bluntly stated, a Detroit-only plan will assure but one result:
a judicially sanctioned segregated school system. This Honorable
Court has refused to sanction segregated school systems in the
South, why should it now do so in the North?
A DETROIT-ONLY PLAN LEAVES THE DETROIT
SCHOOL SYSTEM PERCEPTIBLY BLACK.
State-fostered racial perceptions and isolation have been a
part of school desegregation law for twenty years. These concepts
were first enunciated in Brown I, supra, when this Honorable
Court stated:
“To separate them [blacks] from others o f similar age and
qualification solely because o f their race generates a feeling
of inferiority as to their status in the community that may
affect their hearts and minds in a way unlikely ever to be
undone.
* ❖ *
Segregation o f white and colored children in public schools
has a detrimental effect upon the colored children. The im
pact is greater when it has the sanction o f law; for the policy
of separating the races is usually interpreted as denoting the
inferiority of a negro group. A sense of inferiority affects the
motivation o f a child to learn.” 347 US at 494. [emphasis
added] .
In Brown I, and the sourthern school desegregation cases
which have followed, this Honorable Court has held that the
operation of black schools within (or along side of) white school
j14^ Findings of Fact and Conclusions o f Law on Detroit-only Plans of
Desegregation (55a),
92
systems in the relevant community, denies equal protection of the
law.
When the perceptions o f state-fostered racial separation, such
as was condemned in Brown I, appear, they must be eliminated
“ root and branch.” A Detroit-only plan would be no remedy at
all. Such a plan would leave the Detroit school system with the
vestige o f racial identifiability and all the invidious stigmatic con
notations attendant thereto.
It is a simple fact that Detroit is only a part o f the larger
relevant metropolitan Detroit community. 11431 Whether one’s index
is subjective perception or objective indicia, the community that is
centered in Detroit includes at least parts o f Wayne, Oakland and
Macomb counties, which comprise the proposed metropolitan de
segregation area.
The tri-county metropolitan area has been labeled, by the
Bureau o f the Census, as a Standard Metropolitan Statistical Area
largely on the basis o f the high degree o f interaction among the
populus o f the three counties. The State o f Michigan has recog
nized the interdependence o f the citizens o f the whole area by
establishing the Southeastern Michigan Transportation Authority
(SEMTA), and the Huron-Clinton Metropolitan Valley Authority.
There is also the Metropolitan Detroit Water System which serves
the tri-county area.
The local governments have recognized their interdependence
in creating the Southeastern Michigan Council o f Governments
(SEMCOG). The various highway planners have recognized it in
developing the network o f interstate highways that lead into
Detroit from all directions. And indeed the school authorities of
the State have recognized it, at least in part, by creating the Inter- j
mediate School Districts in each county.
Subjective perceptions coincide with these objective data.
Local residents cross political lines casually in shopping!
commuting to work, seeking recreation and seeking private or
collegiate educations. Dr. Robert Green, an expert witness, 143
[143] Testimony of Roger Marz (IVa 32-40).
93
testified as to these perceptions when he referred to the stream of
whites driving down the freeway from Southfield, Michigan to
Detroit in the morning rush hour and when he described how
Detroit-educated whites have fled to Oak Park, Livonia and
Bloomfield Hills, suburbs o f the City o f Detroit. (Ila 102-03).
This perception works both ways. For while approximately
20,000 blacks work in Warren, Michigan, a suburb o f Detroit,
there are only a handful o f black residents o f that city. The
children o f those black working families have been and are effec
tively excluded from the virtually all-white schools located with
in the city o f Warren. D 4 4 ] x h ese children have been and are
effectively contained in the racially identifiable Detroit school
system.
Just as black children in a 90% black school still perceive
their school as identifiably black, even though all children in
that attendance zone go to the same school, (R. 1023-25), so
also will children in a 60%-80% black Detroit school even
though it is no different than any other school in Detroit — pre
cisely because they know there are nearby suburbs full o f white
youngsters receiving educations in all-white schools^* 145!
Indeed, it would be a most unusual third grader o f any race
who could stand on Tireman Street, a boundary line between
Dearborn, Michigan (a white suburb immediately adjacent to
Detroit which is bounded on three sides by the Detroit school
system) and Detroit and explain that a political boundary line
rather than race was the reason that the white children south o f
Tireman attended a white school in Dearborn and the black chil
dren north of Tireman attended a black school in Detroit.
A child’s perception o f a metropolitan community is con
ditioned by the communications media to which he is exposed
and his perception o f the metropolitan community o f which he
is a part.
Warren High School has a black pupil population of 0 .2% and
arren Woods High School has a black pupil population of 0%. P.M. 13
(Va, 106).
11451 Testimony o f Dr. James Gunthrie, (IVa 110, 111, 113, 117).
94
“ In order for him to get that conception he has to have two
opposing pieces o f information constantly or sometimes
crossing his mind. One set o f information is that he goes to
school with children who are primarily black or lives in a
neighborhood which is primarily black, yet his picture of the
world which is presented to him by the newspapers, by tele
vision, by advertising, is that it is primarily a white world.
Yet he sees himself living in all most totally or pro
portionately black world.” (IVa 110) (Dr. Guthrie).
There is no record evidence on which to base an assumption
that the perception o f the community felt by a black child in
Detroit is limited to the irregular boundaries o f the Detroit School
District t146 147l and further limited only to the racial composition
o f the students in the Detroit school system. On the contrary, it is
obvious in a community that is so inter-related between city and
suburbs that the child would be wondering why his school does
not reflect the total racial composition o f the metropolitan com
munity.!1 471 In response to a question placed to Dr. Guthrie
concerning the affect on a black child o f moving him from a
school which had 45% black enrollment to a 75% black en
rollment, and the comfort that a child might receive in knowing
that everyone else was being treated the same, Dr. Guthrie stated:
“ He would find himself in a racially-identifiable school. It’s a
black school. He must be torn between the tension o f know
ing that that is a school which is a majority black and society
or the surrounding area isn’t. What is he to say to himself,
‘It’s all right that they grouped me this way. It’s all right be
cause they grouped other people that way.’ I personally don’t
find that persuasive, nor logical.
[146] jjjg school districts that abut these irregular boundaries, including
Grosse Pointe and Dearborn, are gerrmandered into Detroit to such an
extent that these districts are literally on top o f the black core of the
Detroit school district.
[147] Testimony of Dr. James Guthrie (I V a ll6 ,1 0 7 ) stating that atypical
perception of Detroit is that it is a black school system, and that under a
Detroit-only plan which would have led to a 65?cr35% black-white ratio in
1972-73, the schools in the system would be perceived by the child as being
black.
95
Q. How about moving a child from a 90% black school to a
75% black school? Would he find comfort in the fact —
would your answer be the same?
A. My answer would substantially be the same. If he should
find comfort in that, he would have to have an extra
ordinarily sensitively calibrated comfort meter inside o f
him, ” 1148] (Emphasis added).
The perception o f a black child is not a perception
obtained in a vacuum. Racial identifiability, and the perceptions
condemned in Brown I, are no less invidious in Northern schools
than in Sourthern schools with a history o f racially separate faci
lities. In the North, racial identifiability emerges in the context
of an urban single school system which is a part o f an interre
lated metropolitan area surrounded by many Balkanized, gerry
mandered suburban school systems.
The District Court, after forty-one days o f trial, found
pervasive state violations o f the constitutional rights o f 280,000
Detroit school children. After hearing the evidence on a Detroit-
only remedy, he reached the stark reality that any Detroit-only
plan would result in the continued racial identifiability o f the
Detroit school sytem as black and would guarantee resegrega
tion. The trial judge realized that with a Detroit-only remedy he
would start with 0 and would end with 0 — no desegregation.
The District Court had no choice but to order a metro
politan remedy.
[148] T estim on y o f Dr. Jam es G u th rie (IV a 1 2 1 ).
96
V
A METROPOLITAN REMEDY IS REQUIRED TO EF
FECTIVELY REMEDY D E J U R E SEGREGATION IN THE
DETROIT SCHOOL SYSTEM
SCHOOL DISTRICT LINES MAY NOT PREVENT A
CONSTITUTIONAL REMEDY
Upon finding that no Detroit-only desegregation plan “ prom
ises realistically to work and work now” , Green v. County School
Board o f New Kent County, 391 U.S. 430 (1968), the District
Court turned to the consideration o f a metropolitan desegregation
plan.
The District Court had before it the phenomenon of the
Detroit school district surrounded by eighty-three relatively small
school districts whose boundaries in many cases were not cotermi
nous with any municipal boundary lines and in some cases strad
dled county lines. The Court found that many o f these districts
and their white schools are time and distance-wise very close to
the Detroit school district and Detroit schools. Seventeen school
districts are adjacent to the Detroit school district. A majority of
Petitioner school districts are within eight miles o f the now exist
ing boundaries o f the Detroit school district.
When the District Court ruled in favor o f a metropolitan
desegregation remedy, it was simply responding to this Honorable
Court’s directive to “ make every effort to achieve the greatest
possible degree o f actual desegregation.” Davis v. Board o f School
Commissioners o f Mobile County, 402 U.S. 33, 37 (1971).
The legal path for the cross district desegregation of school
districts (when needed) was first cleared by this Honorable Court
in the voting rights cases. Those decisions established that consti
tutional requirements supercede the importance o f maintaining
state created legislative districts. Reynolds v. Sims, 377 U.S. 533
(1964); Gomillion v. Lightfoot, 364 U.S. 339 (1960).
The concept o f ignoring the division lines o f political units
for purposes o f guaranteeing constitutional rights has been ex
tended to school districts on the rationale that school district lines
97
within a state are established for political convenience. Lee v.
Macon County Board o f Education, 448 F.2d 746, 752 (5th Cir.
1971); United States v. State o f Texas, 447 F. 2d 441 (5th Cir.
1971).
The Sixth Circuit, following the direction o f this Honorable
Court, affirmed these principles in the instant case:
“We reject the contention that school district lines are sacro
sanct and that the jurisdiction o f the District Court to grant
equitable relief in the present case is limited to the geographi
cal boundaries o f Detroit. We reiterate that school districts
and school boards are instrumentalities o f the State. See
Cooper v. Aaron, 358 U.S. 1, 16 (1958). As early as Brown II
the Supreme Court pointed out that:
‘ [T] he courts may consider problems related to adminis
tration, arising from the physical condition o f the school
plant, the school transportation system, personnel, revision
of school districts and attendance areas into compact units
to achieve a system o f determining admission to the public
schools on a nonracial basis, . . .’ 349 U.S. 300-01.
“The Supreme Court has held that school boundary lines
cannot be changed or new school systems created where the
result is a larger imbalance in racial ratios in school systems
where all vestiges o f enforced racial segregation have not been
eliminated. United States v. Scotland Neck Board o f Educa
tion, 407 U.S. 484 (1972); Wright v. Council o f the City o f
Emporia, 407 U.S. 451 (1972). This is true regardless of
‘dominant purpose.’ ” Wright v. City o f Emporia, 407 U.S.
462.
“ If school boundary lines cannot be changed for an uncon
stitutional purpose, it follows logically that existing boundary
lines cannot be frozen for an unconstitutional purpose.”
Bradley v. Milliken, 484 F.2d 215, 250 (6th Cir. 1973)
(174a).
In Michigan, because local school districts are mere instru
mentalities and the agents o f the State, subject to pervasive state
control, there are no legal impediments to crossing school district
98
lines. In fact, the record reveals that Michigan now transports
students daily across district lines for purposes other than deseg
regation. [1491
The suggestion that a de jure finding must be made against
the Petitioners school districts is totally untrue, f1501 As the Courts
below clearly indicated, education in Michigan is solely a function
o f the State. Local school districts are mere creatures o f the State
acting as agents or instrumentalities o f the State under pervasive
State control. Thus, if the Detroit Board o f Education committed
de jure acts o f segregation, as an agent or instrumentality of the
State, its actions constituted State action, and the State o f Michi
gan is responsible for a desegregation remedy. If the State of
Michigan alone committed de jure acts o f segregation, again, the
State is responsible for a desegregation remedy and may include its
political subdivisions, Petitioner School Districts, in that remedy.
In fact, the Courts below found that both the State o f Michigan
and the Detroit Board o f Education had committed de jure acts of
segregation.
It makes no difference what basis was used for drawing Peti
tioner school districts’ boundary lines. Those districts are an
integral part of Michigan’s system o f education and when there is a
constitutional violation in that system they must become part of
the remedy. If the State o f Michigan is responsible for a remedy
because o f the State’s own actions, the actions o f its agent Detroit
Board, or the actions o f both, the State o f Michigan can properly
be ordered to implement a remedy that involves the school dis
tricts within the metropolitan Detroit community. Those school
districts are State controlled agents created by the State for its
convenience. They are nothing more than the State o f Michigan
itself.
There was no need for de jure acts on the part o f Petitioner
school districts since the State itself had been successful, by its
[ 9] See, tesimony of Eugene Kuthy. (IVa 22), discussing cross district
transportation in Genesee County, Michigan; testimony o f Harold Wagner,
Supervisor of the Pupil Transportation Section, Michigan Department of Edu
cation, (Va 202), “ there are none of these boundary rules that do apply to
transportation of Special Education pupils” . See also, State Report to Judge
Roth.
[150] See, discussion pages 40-52, supra.
99
actions and inaction, in containing the majority o f the black stu
dents in the metropolitan Detroit community within the Detroit
school system.
Petitioners William G. Milliken, Grosse Pointe Public School
System, Allen Park Public Schools, et al., repeatedly cite Swann v.
Chariotte-Mecklenburg Board o f Education, 402 U.S. 1 (1971), as
authority for the proposition that a remedy may not extend be
yond the limits o f the Detroit school district unless constitutional
wrongs have been committed in each neighboring district. The
phrase most commonly used by Petitioners is “ [a] s with any equi
ty case, the nature o f the violation determines the scope o f the
remedy.” This quotation, however, is meaningless when quoted
out of context. In its proper context, it supports a position just
the opposite o f that proffered by Petitioners. As this Court said in
Swann:
“ School authorities are traditionally charged with broad
power to formulate and implement educational policy and
might well conclude, for example, that in order to prepare
students to live in a pluralistic society each school should
have a prescribed ratio o f Negro to white students reflecting
the proportion for the district as a whole. To do this as an
educational policy is within the broad discretionary powers
of school authorities; absent a finding o f a constitutional
violation, however, that would not be within the authority o f
a federal court. As with any equity case, the nature o f the
violation determines the scope o f the remedy. In default by
the school authorities o f their obligation to proffer accept
able remedies, a district court has broad power to fashion a
remedy that will assure a unitary school system.” [emphasis
added] 402 U.S. 16.
Once a constitutional violation has been found, then the in
gredients necessary to correct that violation are determined. Here,
serious constitutional violations by the State acting in conjunction
with, or through, its agent, Detroit Board o f Education, have re
sulted in the racial isolation o f 180,000 black school children
whose isolation will continue unless the State mandates the parti
cipation of its suburban school districts in a remedy. If such a
remedy is not effectuated then the State can masquerade behind
100
its State created school district lines to perpetuate segregation.
Inclusion o f school districts, who have not committed cle jure seg
regation, in the remedy has been consistently approved by the
Federal Courts^151 ^To suggest otherwise in the instant case would
result in the finding o f a constitutional violation without a
remedy.
In context, the statement that “ [o]ne vehicle can carry only a
limited amount o f baggage,” Swann, supra at 22, means that
school desegregation is to be used to eliminate a dual system and
not to deal with “ myriad factors o f human existence which cause
discrimination in a multitude o f ways on racial, religious, or ethnic
grounds.” ! 1521 We note that “ the target o f the cases from Brown I
to the present was the dual school system” . That is the target in
this case. A metropolitan plan is the only possible remedy that can
rectify what the Courts already have found to be a dual, state
authorized school system in Detroit.
B R A D L E Y v. R I C H M O N D DOES NOT APPLY
The Fourth Circuit’s opinion in Bradley v. School Board of
the City o f Richmond, 462 F.2d 105 (4th Cir. 1972), aff’d 412
U.S. 92 (1972) is neither controlling nor persuasive here. The issue
in Richmond, as stated by the Fourth Circuit, was:
“ May a United States District Judge compel one o f the states
o f the union to reconstruct its internal government for the
purpose o f achieving racial balance in the assignment of
pupils to public schools.” 462 F.2d 106.
The Fourth Circuit answered that issue in the negative based on
Virginia law and the fact that all the systems involved were uni
tary.
D 51 }L ee v. Macon County Board o f Education, 448 F.2d 746 (5th Cir.
1971); United States v. Texas, 330 F. Supp. 235 (E.D. Texas 1971), suppg,
321 F. Supp. 235 (E.D. Texas), a ffd , 447 F.2d 441 (5th Cir. 1971), cert,
denied sub nom., Edgar v. United States, 404 U.S. 1016 (1972), In U.S. 'I-
Texas the court ordered the annexation of two districts, one all black and the
other predominantly white, to a third district, also white. Neither of the
white districts had been found guilty of maintaining de jure school systems,
but the court nevertheless required the Texas Education Agency to include
them in the remedy.
1152] Swann, supra at 22.
101
There was no constitutional violation found in Richmond. By
contrast, in the instant case the Courts below have found consti
tutional violations. Furthermore, the District Court in the instant
case did not reconstruct internal government. All the District
Court in the instant case required was reassignment o f some stu
dents across existing school district lines. The District Court, as
affirmed by the Court o f Appeals, only required the State o f
Michigan to do what it had done for other educational purposes
not related to desegregation, viz., transporting students across
school district lines. As previously noted, a comparison o f Virginia
school law with Michigan school law will clearly establish that in
Michigan school district lines are not sacrosanct and are controlled
by the State.
THE RELEVANT COMMUNITY IS THE METRO
POLITAN DETROIT COMMUNITY
The relevant community for an appropriate remedy in the
instant case is not confined to the City o f Detroit, rather it com
prises the politically, socially and economically interrelated metro
politan Detroit community:
A. Many pupils in the metropolitan Detroit community al
ready cross school district lines to attend school or
receive educational services on an inter-district basis.
(79-80a).
B. The metropolitan Detroit area has been labeled by the
Bureau o f the Census as a Standard Metropolitan Stati
stical Area because o f the high degree o f interaction
among the populace o f the tri-county (Wayne, Oakland
and Macomb) area. (80a).
C. Recognizing the interdependence o f its citizens, the
Detroit metropolitan community has joined together in
establishing the Metropolitan Detroit Water System.
(80a).
D. The metropolitan Detroit community has joined to
gether to establish a joint transportation system known
as the Southeastern Michigan Transportation Authority
(SEMTA). (80a).
1 0 2
E. The metropolitan Detroit community has joined to
gether in establishing a Metropolitan Sewage System.
(80a).
F. The metropolitan Detroit community has joined to
gether in establishing a metropolitan park authority
known as the Huron-Clinton Metropolitan Authority.
(80a).
G. The local governments have recognized their inter
dependence by creating the Southeastern Michigan
Council of Governments (SEMCOG). (80a).
H. The school authorities have recognized the metropolitan
nature o f education by creating intermediate school dis
tricts which provide educational services on an inter
district basis in each o f the three counties. (80a).
I. A number o f school districts encompass more than one
city. For example, Petitioner, Grosse Pointe Public
School System, encompasses five separately incor
porated cities (Grosse Pointe Park, Grosse Pointe City,
Grosse Pointe Farms, Grosse Pointe Woods, and Grosse
Pointe Shores) and part o f a sixth (Harper Woods), most
o f which have at least one common indistinguishable
pavement border with the City o f Detroit. (80a).
I. The adjacent Harper Woods School District does not
cover the entire City o f Harper Woods. The adjacent
Warren Fitzgerald School District does not cover the
entire City o f Warren. All are separated from Detroit by
invisible boundary lines. (80a).
K. Thirty-three point eight percent (33.8%) o f workers liv
ing in Oakland County were employed in Wayne County
and fourty-four point two percent (44.2%) o f workers
from Macomb County worked in Wayne County, Wayne
County being the county in which Detroit is the domi
nant city. (IVa 37).
L. The record reveals that many suburbanites, though not
living within the corporate city limits o f Detroit, con
ceive themselves as “ Detroiters” . (IVa 40).
103
The white students o f the metropolitan Detroit community,
who like Detroit school children are educated by the State, sur
round the State-contained black school children o f Detroit. Such
racial isolation was condemned by this Honorable Court nineteen
years ago in Brown v. Board o f Education o f Topeka, (Brown I),
347 U.S. 483 (1954) when the Court said:
“To separate them (blacks) from others o f similar age and
qualification solely because o f their race generates a feeling
of inferiority as to their status in the community that may
affect their hearts and minds in a way unlikely ever to be
undone.” 347 U.S. 494.
A Detroit-only plan leaves Detroit school racially identifiable
as black and perceived as black, whereas a metropolitan remedy
would effectively desegregate Detroit schools and convert them to
“just schools” without racial identifiability. Brown v. Board o f
Education o f Topeka, (Brown II), 349 U.S. 294 (1955) offers lower
courts guidelines as to the methods o f desegregation:
“To that end, the Courts may consider problems related to
administration, arising from the physical condition o f the
school plant, the school transportation system, personnel,
revision of school districts and attendance areas into compact
units to achieve a system of determining admission to the
public schools on a non-racial basis, and revision o f local laws
and regulations which may be necessary in solving the fore
going problems. They will also consider the adequacy o f any
plans the Defendants may propose to meet these problems
and to effectuate a transition to a racially nondiscriminatory
school system.” 349 U.S. 300-301.
The District Court and the Sixth Circuit, both in panel and
en banc, came to realize that the only way unconstitutional racial
school isolation, in the extensively interrelated metropolitan
Detroit community, can be eliminated is through a metropolitan
desegregation remedy.
A METROPOLITAN DESEGREGATION REMEDY IS
EDUCATIONALLY SOUND AND PRACTICAL
4 here are several elements that must be present for a deseg
regation plan to work. Every school, or almost every school,
104
should contain a mixture o f the races that roughly approximates
the make-up o f the student community as a whole. Swann v.
Charlotte-Mecklenburg Board o f Education, 402 U.S. 1 (1971);
Davis v. Board o f School Commissioners o f Mobile County, 402
U.S. 33 (1971). The plan should be educationally sound. Swann,
supra. The plan must be practical. Swann, supra ; Davis, supra..
Swann pointed out that “ mathematical ratios” , i.e., racial
mix, may be “ a starting point in the process o f shaping a remedy”
but is not an “ inflexible requirement.” In the instant case, the
District Court found that in the metropolitan Detroit community
the ratio o f whites to blacks was approximately 75% to 25% and
the Court employed this as a flexible ratio similar to the ratio used
in Swann.
No desegregation plan can function unless it is educationally
sound. The educational soundness o f an integration plan is to a
large extent dependent upon how effectively it gives children an
opportunity to have stable multi-racial experiences in groups com
posed substantially like the surrounding community. All the edu
cators that testified on this record agreed that a metropolitan plan
is educationally sound. (82-85a) (IVa 117-19).
As explained in the discussion on transportation, infra, the
proposed metropolitan plan is most practical because it takes into
consideration the peculiarities o f metropolitan Detroit geography
to minimize transportation distances and times. The plan also
makes optimum utilization o f existing faculties.
Under existing Michigan law, pupils can be educated in dis
tricts other than those in which they resided1531 Michigan statutes
authorize a variety o f arrangements whereby school districts may
educate their pupils in other districts. 1154] state as well as local
[1 5 3 ]jn fact> the current Michigan Constitution was expressly drafted to
permit non-resident attendance. The Honorable George Romney, Vice-
President of the Constitutional Convention and Chairman of an education
subcommittee (and subsequently Governor of Michigan) presented the formal
report of the Education Committee to the Convention and immediately
added: “ In other words, the language, as explained in the first two para
graphs, permits school districts to arrange for 'the education of their children
in other school districts, but it does require them to make provision for
education of their children from the kindergarten through grade 12.”
[ 154 ' m CLA § § 3 4 0 .2 4 ; .69 ; .121(c) and (d); .330(m ) (1973-74 Supp4
340.359 ; .58 2 ; .582(a); .590 ; .590(a); .590(b); .591 ; .592 ; .761; .763 (1973-
74 Supp.); and .771(a).
105
funds may be expended for non-resident education.!1551 The
normal method o f arranging for non-resident attendance is by con
tractual agreement between the districts.t156 ̂ In addition, con
tracts may be arranged between suburban school districts and any
of the three intermediate school districts over-lapping the metro
politan Detroit area who are already authorized to supervise and
coordinate the education o f handicapped children!157] and voca
tional education on a gross district basis. ! 158]
Teacher reassignments are similarly manageable under present
Michigan law. Legislative interest in this area has already been
shown by the recent enactment o f a statute protecting the interest
of a group o f teachers transferred from one district to another:
Act 101, § 51(4), Mich. Pub. Acts o f 1973: “ Special educa
tion personnel transferred from 1 school district to another
to implement the school code o f 1955, as amended, shall be
entitled to all rights, benefits, and tenure to which the person
would otherwise be entitled had he been employed by the
receiving district originally.”
As a recipient o f federal aid to education, the State Board o f
Education has a duty under Title VI o f The Civil Rights Act o f
1964, 42 U.S.C. § 2000(d) to maintain unitary schools, a require
ment which the Courts below have mandated in the instant case.
Michigan has revised its school code to provide the State Board
with whatever powers it may need to insure compliance with Title
Mi. M.C.L.A. § 388.1031 provides:
Sec. 1. The state board o f education may take any necessary
action consistent with state law to comply with the provi
sions of Public Law 531 o f the 83rd Congress, known as the
_____ cooperative research act’ to encourage research and related
!!5q5'MCLA § §3 4 0 .2 4 ; 34 0 .69 ; 340 .121(d), 340.582(a), 340 .761 , 340.763
1, f'74 Supp.), 340.771(a), (1973-74 Supp.), 340.33(m ) and (q) (1973-74
MPP-);Act 101, §111 of Mich. Pub. Acts of 1973.
[156]
(\%l)e’ J° neS V' Gmnd Ledge PubUc Schools’ 349 Mich. 1 ,8 4 N.W. 2d 327
11571MCLA §340.771 (a) (1973-74 Supp.).
MCLA § 340.330 (m ); and see (1973-74 Supp.)
106
activities which are o f significance to education and with the
provisions o f Public Law 10 o f the 89th Congress, known as
the ‘elementary and secondary education act o f 1965’
In summary, the Detroit Board o f Education believes that a
metropolitan remedy is constitutionally mandated and statutorily
available under Michigan public school law. Perhaps the most
eloquent statement o f its position was made by the District Court
on July 19, 1972:
“ I think it should be clearly understood, however, that in ray
disposition o f the motions before me today this Court does
not retreat from nor abandon . . . our conclusion that any
plan for the desegregation o f the public schools o f the City of
Detroit would not accomplish desegregation and that only a
Metropolitan Plan o f desegregation would accomplish the de
segregation o f those schools.
“ The Equal Protection clause o f the Fourteenth Amendment
to the Constitution o f the United States, as I read it, is not
geographically limited. It is difficult for this Court to believe
that any higher judicial authority o f the United States would
or, for that matter Constitutionally could, engraft on that
amendment any such geographical limitation. The vindication
o f the Plaintiffs’ Constitutional right to equal education can
not be denied on the claim o f alleged sovereign powers of
local school districts.” (R. 1947-48). 1159] 159
[159] gee a[s0' ]\fewburg Area Council, et al. v. Board o f Education of J&
ferson County, Kentucky, et al., Civil Nos. 73-1403, 73-1408 (6th Cir. filed
Dec. 28, 1973) Slip Op. at 11.
107
VI
THE TRANSPORTATION SYSTEM PROPOSED IN THE
METROPOLITAN REMEDY CAN BE PRACTICAL AS TO
REASONABLE DISTANCES AND TRAVEL TIMES AND
WILL EFFECTIVELY DESEGREGATE.
In Swann v. Charlotte-Mecklenburg Board o f Education, 402
U.S. 1 (1971), this Honorable Court held student transportation
to be one tool o f desegregation and declared that “ desegregation
plans cannot be limited to the walk-in school,” 402 U.S. 30. The
concurring opinion in Keyes v. School District No. 1, 413 U.S.
189 (1973) noted: “ . . . Yet the court in Swann was unquestion
ably right in describing bus transportation as ‘one tool o f school
desegregation’ . . . [citation omitted] 413 U.S. 244.
On the same day the Swann decision was handed down, this
Honorable Court upheld a District Court decision that the North
Carolina antibusing statute was unconstitutional in North Carolina
State Board o f Education v. Swann. U 6 0 ] j n invalidating the legis
lation the unanimous opinion stated:
“As noted in Swann. . .bus transportation has long been an
integral part o f all public educational systems, and it is un
likely that a truly effective remedy could be devised without
continued reliance upon it.” North Carolina State Board o f
Education, supra at 46.
Anywhere from 39% to two-thirds o f all American children
today ride buses to their schools. M611 The scope o f student
transportation in Michigan is no different.
“The transporting o f elementary and secondary school youth
for educational purposes within the State o f Michigan is by no
means a new phenomenon. In many communities; rural, urban and
suburban; riding a school bus is almost a way o f life.
‘Michigan school districts have for many years either operat
ed their own bus fleets or contracted with commercial transpor-
[160! 402 U.S. 43 (1971)
^ 611 Swann, 402 U.S. 30; Keyes, 4 13 U.S. 189, 24, n. 22.
1 0 8
tation companies and individual carriers for purposes of transport
ing pupils. Students have been traditionally transported in order to
successfully bring about school district consolidation; to effective
ly and efficiently utilize available classroom facilities (within andj
or across district lines); to avail pupils o f special educational
programs and services offered only at certain school sites; to assure
pupil safety; and, o f course, to eliminate the necessity o f having
students walk excessive distances.
“ During 1969-70 (the most recent year for which sufficient
and adequate data has been collected and audited), 508 of
Michigan’s then 638 school districts provided transportation
services for approximately 790,000 pupils. This service required
the use o f more than 10,000 motor vehicles traveling in excess of
83,000,000 miles. The cost to those school districts providing
transportation services was $43,139,356. The cost to the districts
is, however, offset under the provisions o f Act No. 312 of the
Public Acts o f 1957, State Aid for Transportation of School Child
ren. In 1969-70, the 508 school districts operating district-owned
vehicles and/or leasing commercial carriers were reimbursed
$28,267,927 for providing transportation services for their “eli
gible” students. Of the 10,028 school buses operating in 19 6 9-70,
8,771 were district-owned vehicles which transported over
745,000 pupils. Table 10, Transportation Comparison, shows the
number of pupils transported during the past twenty years and
clearly indicates that the trend is and continues to be in the direc
tion o f reducing the numbers o f school districts and increasing the
numbers of pupils transported by district-owned vehicles..
[162] [emphasis added]
The foregoing language was written by the Michigan State
Board of Education and submitted to the District Court as part of
the State’s metropolitan plan for desegregation. 1162 1631 The State
reported to the Court that in the year 1969-70, over 790,000
Michigan students were transported to their schools, “ within and/
or across district lines.”
[162] Metropolitan One-Way Student Movement and Reassignment Plan, as
submitted to Federal Court Judge Stephen J. Roth by the Michigan State
Board of Education, February 1, 1972, pages 26-27.
[163] the State acknowledges in its report to Judge Roth that it
does provide cross district transportation for educational purposes other t an
school desegregation, see also n. 113, infra.
109
The District Court found that in Wayne, Macomb and Oak
land Counties (parts of each o f these three counties are covered by
the proposed metropolitan desegregation plan), more than
300,000 pupils rode to school on some kind o f bus transportation.
Of these, 60,000 rode the regularly scheduled public transit ve
hicles.!164 *1
In the State o f Michigan, 35% to 40% of all school children
are transported to school. In comparison, the metropolitan
Detroit area school districts eligible for state reimbursement for
transportation costs in 1969-70 transported from 42% to 52% of
their school children. (Petition for Ceriorari, App. 72a). These
suburban transportation figures indicate that student transpor
tation is as popular, and at least as extensive, in an urban-suburban
area as in the rural areas.
The State o f Michigan has no problem in providing transpor
tation for almost three quarters o f a million students for non
desegregation purposes. When educational necessity dictates, the
State of Michigan has no problem implementing cross district bus
transportation.! 165]
However, when student transportation for purposes o f pro
tecting constitutional rights is involved, the Michigan Attorney
General attempts to “ testify” as to the alleged unreasonably mas
sive scope o f an as yet undeveloped plan o f metropolitan student
̂ ®4! See Appendix to Petition for Certiorari, pp. 72a-73a. In Detroit, ap
proximately 41 ,000 students are transported via public transportation and
chartered bus at the expense of the Detroit school system, and Detroit
students.
See testimony of Eugene ICuthy (IVa22), wherein cross district trans
portation occurs in Genessee County, Michigan; testimony o f Harold Wagner,
Supervisor of the Pupil Transportation Section, Michigan Department of Edu
cation, (Va202), “ there are none of these boundary rules that do apply to
transportation of Special Education pupils.” See also, State Report to Judge
Roth, n. 111 supra.
The most obvious example of cross district transportation, however, is
the instance of the Carver District (North o f the Detroit district) transpor
tation of black children into Detroit’s Northern High School. This cross dis
trict transportation existed for several years, see pages 65-67, supra.
110
transportation [ 166 *1. We respectfully remind this Honorable Court
that there is no plan o f desegregation to review. Hence, any specu
lation as to the breadth or depth o f a cross district transportation
plan is unfounded.
The sheer size o f any desegregation area is in and o f itself,
not the sole criterion by which to judge the propriety o f a trans
portation remedy. For example, in Swann this Court approved a
transportation plan that involved a desegregation area of 550
square miles; in Jacksonville, Florida, the school district encom
passes 846 square miles and under a desegregation plan, transports
approximately 50% of its 111,000 students.
These figures are to be compared with the tentatively pro
posed metropolitan Detroit area desegregation plan, which if
adopted totally, according to the Brief o f Petitioners William G.
Milliken, et al. (p. 16), would cover an area approximately 700
square miles with no suggestion that anywhere near fifty percent
o f the students encompassed would be transported.
Let there be no mistake. The District Court moved with great
moderation and ruled that student transportation was a permis
sible remedial tool only after entertaining extensive proofs. The
Court rejected the Detroit Board’s proposal o f a desegregation area
encompassing the 83 school districts in the tri-county area, fora
more workable tentative desegregation area which includes the
present 52 school districts surrounding Detroit’s irregular boun
daries. Seventeen of these school districts are adjacent to the City
of Detroit and the balance are within eight miles o f the Detroit
city limits.! 167]
[166] $ee grjef 0f Petitioners William G. Milliken, et al. pages 53 and 63,
wherein the numbers of school districts, square miles and pupil population of
the tri-county area are emotionally characterized. But Petitioner fails to point
out that student transportation is presently being provided by the State of
Michigan in districts which already include more area than the tentatively
proposed desegregation area. For example, Tahquamenon District in the
Upper Peninsula of Michigan has 1,286 square miles where students are
transported 114 miles round trip 81 minutes one way daily. Testimony of
Harold Wagner (Va206).
t *67] See Maps on Pages 115, 116, infra.
Ill
The compelling logic o f cross district student transportation
in this case is illustrated by the scale maps o f the desegregation
area provided on the following pages. Plate Number 1 depicts the
tentative scope o f the proposed metropolitan Detroit desegregation
area. Plate Number 2 highlights examples o f the manageability and
facility by which students can be readily transported for desegre
gation purposes consistent with this Honorable Court’s guidelines.
The District Court correctly concluded that the Detroit
school district could be desegregated, and avoid resegregation, by a
cross district student transportation plan which would not exceed
the time and distance limitations o f Swann.t168( The trial court
placed a tentative ceiling o f forty minutes’ travel time on any plan
to be developed. In many parts o f the proposed desegregation
area, far less travel time would be required.^ 69 * ̂ The District
Court noted:
“This court weighs more heavily the judicially recognized
concern for limiting the time and distance o f pupil transpor
tation as much as possible, consistent with the constitutional
requirement to eliminate racially identifiable schools...” D70]
As the following maps illustrate, certain suburbs panhandle
into the Detroit boundary lines. As a result, suburbs such as Dear
born on the west side o f Detroit and Grosse Pointe on the east side
of Detroit are within fifteen to twenty minutes from the heart o f
downtown Detroit by surface street travel, and their white subur
ban schools are substantially closer to black Detroit schools. The
average distance for school bus trips in Michigan is eight and one-
half miles, one-wayJ1711 However, a few examples o f what can
[168] 402 U.S. at 30.
None of the travel time under the proposed plan would even come
dose to comparing with the extensive travel time presently existing in the
metropolitan area. See e.g., testimony of Eugene Kuthy (IVa 15) wherein
one hour bus trips are not unconventional; Harold Wagner (V a206-207),
snowing that the tri-county area bus transportation reaches upwards of one
hour and fifteen minutes travel time, one-way; Kuthy (IV a ll-1 2 , 18, 23,
-5-27) wherein a metropolitan transportation program offers certain econo-
nues of scale as opposed to the excess costs of operating a Detroit-only trans
portation system; Wagner (V a217) in suburban areas surrounding urban area,
more economical and greater use is obtained from each bus. See also, f.n. 121
infra.
1170] ,,0 , „
, (68a). See also (68a-70).
1171 ] „ _
oee Testimony of Harold Wagner (Va225).
112
be accomplished with a cross district transportation plan (as illu
strated on Plate 2, page 116, infra, covering four miles or less, one
way, dramatize the effectiveness and rationality o f transportation
as a remedy:
(1) On the east side o f Detroit a black Detroit child living in
the attendance area o f such black Detroit schools as South
eastern High School, Remus Robinson Junior High School or
Carstens Elementary School is equally capable o f attending
Grosse Pointe South High School, Pierce Junior High School
or Defur Elementary School, in the all white Grosse Pointe
school district. Indeed, a black Detroit child living near the
boundary o f Detroit would be able to attend a Grosse Pointe
School by traveling an equal distance in the same time that
he presently travels to go to his black Detroit school.
(2) On the west side o f Detroit, a black Detroit child could
live midway between the black Detroit MacKenzie High
School or the McFarlane, Parkman, Barton or Sherrill Elem
entary Schools and by traveling an equal distance, attend the
white Fordson High School or the McDonald or Maples Elem
entary Schools all in suburban Dearborn.
(3) On the northwest side o f Detroit, it is possible fora
black Detroit child to travel an equal distance in the same
time period and attend either the black Detroit Mumford
High School, Beaubian Junior High School or Higginbotham
Elementary School, or attend the white Oak Park High
School in suburban Oak Park, the white Ferndale High
School in suburban Ferndale, or the white Best Elementary
School in suburban Ferndale. 4
(4) On the northeast side o f Detroit the same situation pre
vails. A black Detroit child could travel an equivalent
distance in the same time and attend either the black Detroit
Pershing High School, or the white Fitzgerald High School in
suburban Warren or the white Hazel Park High School in
suburban Hazel Park.
113
Although the foregoing represent but a few examples o f the
minimal travel time necessary to effectively desegregate the De
troit school district and prevent resegregation under a cross district
transportation plan, there are other similar situations which can
likewise be established.
In many instances a rerouting o f existing suburban transpor
tation routes, for the purpose o f a metropolitan desegregation
remedy, would result in cross district transportation routes which
are shorter than existing intra-district routes. There are also pos
sible economies not realized now by eliminating duplication o f
present service.!172]
The logic o f a cross district transportation plan is manifest. In
many instances it would result in less travel time than: (a) would
occur in the assignment o f a Detroit black child to a racially iden
tifiable black Detroit school under any Detroit-only remedy, or
(b) presently occurs in the transportation assignment o f a subur
ban white child to a white suburban school.!173] Detroit-only
transportation offers all of the worst features o f an illusory
remedy, ie. transportation of black children to the few white
areas left in Detroit, as opposed to the effective remedy o f cross
district transportation; i.e. desegregation o f a dual system and its
vestiges.
Even the “ neighborhood school” concept defense does not
reach constitutional proportions because in the proposed desegre
gation area it is nothing more than a myth. The fact that the
State of Michigan provides extensive bus transportation to ap
proximately 300,000 children in the metropolitan area clearly re
buts any contention that transportation o f students would some
how disrupt the “ neighborhood school” program.
] See testimony of Eugene Kuthy (IVal 1-12, 18, 23, 25-27), wherein a
metropolitan transportation program offers certain economies o f scale as
opposed to the excess costs o f operating a Detroit-only transportation
system. See also Wagner testimony (Va217).
!1731 See Petition for Certiorari, (67a), wherein the District Court found
that, in Michigan and the tri-county area, pupils often spend upwards of one
hour and up to one and a half hours one-way on a bus ride to school each
day.
114
Furthermore, the trend o f transportation in Michigan is in
creasing. The State has suggested that there will be more student
transportation in the future and less walk-in neighborhood school
regardless o f this case, due to the State’s continuing policy of con
solidation o f school districts and the resulting transportation im
plementation. t1741
This Honorable Court’s opinions in Swann, North Carolim
State Board o f Education, and the concurring opinion in Keys
recognize transportation as a valid remedial tool o f school desegre
gation which shall be used with moderation and discretion in light
of the mandate that “ [t] he district judge or school authorities
should make every effort to achieve the greatest possible degreeof
actual desegregation, f1751
The District Court made no rush to judgment. Rather, it cor
rectly determined, as the maps clearly illustrate, that the constitu
tional right to equal protection o f law cannot be made dependant
upon the “ fortuitous” circumstance o f geography.
Since Brown I, the task o f ensuring Fourteenth Amendment
rights has resided with the judiciary. The lower courts have fol
lowed the dictates o f the Constitution and sound discretion.
Metropolitan transportation is the only effective remedy for the
de jure segregated condition o f the Detroit school district.
[174] See f.n. 110, supra, at p. 82.
[175] Swann, supra at 26. [emphasis added].
115
Lake Shore
Farmington Southfield
* 5 } \ gw1irA
10’
Livonia
ft I
Radford •
Union
R o T
Sfuth
B e d f o r d
GardenJ*
* * i t y 11
Oak Park F# rndalt Fitigarafd VanOykt
• - v
7 7 .
1 lakeview
e i I‘ 2 r > ^D e * o l t ' T South Lake
* 7
Dearborn
11
W*yneW«itland
J—
• *15M
13 Taylor
Romu I u t 12 Sou
•
thgata
— —_____r .
.15
7 River
l co r» e
'Wyandotte
i f
tT E l
DETROIT DESEGREGATION
AREA
= sites of high schools
PLATE 2
117
VII
THIS HONORABLE COURT HAS ESTABLISHED THAT
THE ELEVENTH AMENDMENT DOES NOT PREVENT A
FEDERAL COURT FROM ORDERING THE EXPENDI
TURE OF STATE FUNDS FOR THE IMPLEMENTATION
OF A PLAN OF DESEGREGATION.
State Defendants have suggested that the financing and im
plementation o f a desegregation remedy involving an expenditure
of state funds is beyond the power o f the parties to this
cause.!176! They allege that only the State o f Michigan, not a
party to this lawsuit, has the power to implement a remedy. The
argument presented by the State Defendants is not novel, it is
often made by state officers in an attempt to frustrate remedial
orders of federal courts in the area o f school desegregation.
Cooper v. Aaron, 358 U.S. 1 (1958). This argument consistently
has been laid to rest as quickly as it has been raised. The source of
this argument is traceable to the restrictions on judicial power
vis-a-vis the States, as enunciated in the Eleventh Amendment and
as related to the Supremacy Clause. It is countered by the con
sistent holdings of the courts that it is the duty o f state officers to
support both the Constitution and the rights guaranteed against
infringement by the States under the Fourteenth Amendment.
Although this Honorable Court has recognized the immunity
of a State from suits involving direct actions against government
funds or property for complainants’ personal benefit,1177! this
Honorable Court has not deemed the Eleventh Amendment a
serious impediment to judicial action whenever the protection of
compelling Constitutional rights has been at issue. See, e.g.,
Osborn v. Bank o f United States, 9 Wheat 738 (1824); Graham
v. Folsom, 200 U.S. 248 (1906); Ex parte Young, 209 U.S. 123
(1908).
11761 Brief for Petitioners William G. Milliken, et al. at 41-46.
11771 See, e.g., In re State o f New York, 256 U.S. 490 (1920) (suit against
State Superintendent of Public Works for damages resulting from tugboat
operation) and Ford Motor Co. v. Department o f Treasury o f Indiana, 323
U.S. 4S9 (1945) (suit against state officials for tax refund) — Both of these
cases are relied upon heavily by Petitioners William G. Milliken, et al.
1 1 8
In school desegregation cases, this Honorable Court has fol
lowed that rule. U78]in Cooper v. Aaron, 358 U.S. 1 (1958),a
case which involved obstructionist tactics by the Governor and
Legislature o f the State o f Arkansas against implementation of
federal court ordered desegregation, this Honorable Court stated:
“ In short, the Constitutional rights o f children not to be
discriminated against in school admission on grounds of race
or color declared by this Court in the Brown case can neither
be nullified openly and directly by State legislators or State
executives or judicial officers, nor nullified indirectly by
them through evasive schemes for segregation whether at
tempted ‘ingeniously or ingenuously. ’ ” 358 U.S. at 17.
In Griffin v. School Board o f Prince Edward County, 311
U.S. 218 (1964), a case which involved the closing o f public
schools and the operation o f a system o f private schools by Prince
Edward County, Mr. Justice Black, speaking for a unamious Court,
summarily dismissed the Eleventh Amendment argument:
“ It is contended that the case is an action against the State,is
forbidden by the Eleventh Amendment, and therefore should
be dismissed. The complaint, however, charged that State and
county officials were depriving Petitioners o f rights guaran
teed by the Fourteenth Amendment. It has been settled law
since Ex parte Young, [citation omitted], that suits against
State and county officials to enjoin them from invading con
stitutional rights are not forbidden by the Eleventh Amend
ment.” 377 U.S. at 228.
[ 178] See Wright, LAW OF FEDERAL COURTS 186 (2d ed. 1970):
“ . . . [I] n some situations, as where a state has failed to desegregateits!
schools, affirmative action is required of the state to fulfill its constitu-.
tional obligations, and there would not be even the possibility of raising
the constitutional issue [Eleventh Amendment] defensively . . . .
* * * *
“ . [1[ n earlier years E x parte Young was the foundation from which state
utility regulation and welfare legislation were attacked. Today it Pr0
vides the basis for forcing states to desegregate their schools(251 an
reapportion their legislatures.”
119
This Honorable Court went on to state that the District Court
could force the various Defendants, the Board o f Supervisors,
School Board, Treasurer, Division Superintendent of Schools of
Prince Edward County, the State Board o f Education and the
State Superintendent o f Education — all o f whom held duties
which related “ directly or indirectly to the financing, supervision,
or operation o f the schools” - to undertake positive action to
reopen the public schools in Prince Edward County:
“ For the same reasons, the District Court may, if necessary
to prevent further racial discrimination, require the Super
visors to exercise the power that is theirs to levy taxes to
raise funds adequate to reopen, operate and maintain without
racial discrimination a public school system in Prince Edward
County . . . [emphasis added] 377 U.S. at 233.
Thus, it becomes readily apparent that the Michigan State
Defendants, through the exercise o f inherent powers which they
possess as officers and instrumentalities o f the State, can ef
fectuate and implement the remedy ordered by the District Court
in this cause, t179 J
In Evans v. Ennis, 281 F.2d 385 (3rd Cir. 1960), a class
action suit against the Delaware State Board o f Education, the
State Superintendent o f Public Instruction, and three county
boards of education to desegregate the public schools throughout
the State of Delaware, the District Court, dispensing with conten
tions similar to those being advanced by the Michigan State De
fendants in this cause, stated:
“ Doubtless integration will cost the citizens o f Delaware
money which otherwise might not have to be spent. The
education of the young always requires, indeed, demands,
[1791 Should it subsequently be determined that the present Michigan State
Defendants do not, in fact, have the inherent or specific powers to implement
the remedy ordered by the District Court in this cause, the District Court
may add such parties as are necessary to effectuate a complete and adequate
remedy and to achieve “ an orderly and fair administration of justice.” Griffin
v. School Board o f Prince Edward County, 377 U.S. 218 (1964); Fed. R. Civ.
P. 19, 21.
120
sacrifice by the older and more mature and resolute members
o f the community. Education is a prime necessity of our
modern world and o f the State o f Delaware. We cannot
believe that the citizens o f Delaware will prove unworthy of
this sacred trust.” 281 F.2d at 389.
* * *
“ This second element o f the plan, if it is to be consummated,
will necessitate the making o f immediate estimates as to
future school facilities. The making of such estimates is not a
simple matter. Their creation will require the exercise of
energy, skill, patience, and creative adaptability by the public
school authorities, and, as we have indicated, funds to be
appropriated by the General Assembly o f Delaware. The duty
imposed on the State Board o f Education in this respect is as
clear as is the responsibility confided to this court and to the
court below to, make certain that the mandate of the
Supreme Court is carried out.” 281 F.2d at 392.t18°]
As the District Court correctly recognized in Swann v. Char-
lotte-Mecklenburg Board o f Education, 318 F. Supp. 786 (W.D,
N.C. 1970), the implementation o f procedures necessary to assure
any Constitutional rights o f the individual 1180 1811 may place, directly
or indirectly, additional financial burdens upon the State, even
though it is not a formal party to the proceedings:
“ Flowever, if a Constitutional right has been denied, this court
believes that it is the Constitutional right that should prevail
against the cry o f ‘unreasonableness’. . . The unreason
ableness o f putting the State to some expense cannot be
weighed against or prevail over the privilege against self
[180] A ccord , K elley v. M etropolitan C ounty Board o f Education o f Nash
ville and Davidson C ounty, Tenn. 463 F.2d 732 (6th Cir. 1972), cert, denied
409 U.S. 1001 (1972); Swann v. Charlotte-M ecklenburg Board o f Education,
402 U.S. 1 (1971); Cisneros v. Corpus Christi In dep end en t S ch ool District,
330 F. Supp. 1377 (1971).
[181] por examples of the reaffirmation o f other Constitutional rights,
which may involve demands upon the State Treasury, see, e.g., Argersingerv.
Hamlin, 407 U.S. 25 (1972) (furnishing counsel for all indigents charged
with misdemeanors); G ideon v. Wainwright, 372 U.S. 335 ( 1963) (furnishing
counsel for all indigents charged with felonies); R eyn old s v. Sims, 211 U.S.
533 (1964) (legislative reapportionment).
121
incrimination, or the right o f people to be secure in their
homes. If, as this court and the Circuit Court have held, the
rights o f children are being denied, the cost and inconven
ience of restoring those rights is no reason under the Consti
tution for continuing to deny them.” 318 F. Supp. at 801.
Given the extensive participation by the State Defendants in
all facets o f Michigan Public School Education, the State Defen
dants can be ordered to implement an effective plan for desegrega
tion by the District Court.
122
VIII
A THREE JUDGE DISTRICT COURT IS NOT REQUIRED
SINCE THE CONSTITUTIONALITY OF A STATEWIDE
STATUTE IS NOT BEING CHALLENGED.
Amici Curiae Bloomfield Hills School District, et al., con
tend that the District Court and the Sixth Circuit Court of Ap
peals erred by failing to order the convening o f a three-judge dis
trict court under 28 U.S.C. § 2281.1182] This contention is based
upon the theory that any order implementing a metropolitan plan
for desegregation would . .necessarily involve restraining the en
forcement, operation or execution o f statutes o f state-wide appli
cation.” ! 183] What Amici Curiae fail to discern is that any court
ordered desegregation plan in this cause would not enjoin a statute
which has been attacked as unconstitutional. The injunction, re
ferred to by Amici Curiae, would require state and local officials
to refrain from exercising certain powers under state statutes,
Such state statutes have not been challenged as unconstitutional
___________________________________________ i
[182] jn jjjs “ state of the Federal Judiciary — 1972” report to the American
Bar Association, Mr. Chief Justice Burger suggested that:
“ [w ]e should totally eliminate the three-judge district courts that now
disrupt district and circuit judges’ work. . .
He * *
. . . [t ] he original reasons for establishing these special courts, whatever
their validity at the time, no longer exist.”
Burger, The State o f the Federal Judiciary - 1972, 58 A.B.A.J. 1049,
1053 (1972).
Other commentators have suggested that the three-judge courts’ useful
ness may now be very limited:
“Recently, however, both reapportionment and desegregation suits have
virtually disappeared from three-judge court dockets because of the interpre
tation of the three-judge court statute given by the Supreme Court in Bailey
v. Patterson, holding that three judges are not required to hear cases when the
challenged statute is clearly unconstitutional, as determined by previous
decisions in similar cases. Now, more than a decade after Brown v. Board of
Education and Baker v. Carr, desegregation and reapportionment cases can
usually be handled by a single judge. Whether some new class of cases involv
ing the same degree of public interest and reaction will develop is uncertain.
It might be noted, however, that the center of current controversy over fed
eral courts and state government involves busing — a form of relief that can
be ordered by a single judge” , [footnotes omitted]. Comment, Why Three-
Judge District Courts?, 25 Ala. L. Rev. 371, 379-80 (1973).
[183] Brief for Amici Curiae, Bloomfield Hills School District, et al. page 20.
123
by either the Courts or the Plaintiffs below. 11841
Judicial Code,28 U.S.C. §2281 states in pertinent part:
“An interlocutory or permanent injunction restraining
the. . .execution o f any State statute by restraining the action
of any officer o f such State in the. . .execution o f such stat
ute. . .shall not be granted by any district court or judge
thereof upon the ground o f the unconstitutionality o f such
statute unless the application therefor is heard and determin
ed by a district court o f three judges under Section 2284 of
this title.” [emphasis added].
Inasmuch as any action o f state officials that may be enjoined in
the instant case is not pursuant to a state statute that has been
challenged as unconstitutional, this case does not fall within the
purview of 28 U.S.C. §2281. This is particularly true in light of
this Honorable Court’s strict construction o f 28 U.S.C. §2281.
See Phillips v. United States, 312 U.S. 246, 250-51 (1941).
In Phillips v. United States, supra, a three judge court granted
an interlocutory injunction restraining the Governor o f Oklahoma
from interferring with the completion o f a federal dam which
would cause flooding o f state highways. The Governor had de
clared martial law and had ordered the State Adjutant General to
take control o f the dam site. The authorizations under which he
presumed to act were the state constitution 11851 and a statute
authorizing and requiring him to call out the militia in case o f war
or other contingencies including “ any forcible obstructing o f the
execution of the laws or reasonable apprehension thereof, and at
[184] Act 48, Mich. Pub. Acts of 1970 was deemed unconstitutional. How
ever, a three-judge court was not required. Act 48 was enacted by the Michi
gan Legislature for the sole purpose of thwarting the implementation of a
desegregation plan in Michigan’s only first class school district, the Detroit
school system. Since the application of the statute was local in nature
(Detroit school system only) a three judge court was not required. Ex parte
Collins, 277 U.S. 565 (1928).
1185] Wherein the Governor was given “ supreme executive power,” acted as
‘Commander in Chief” of the State Militia and caused “ the laws of the state
to be faithfully executed.” 312 U.S. at 251.
124
all other times he may deem necessary. . . Phillips, supra at 251
The United States in its Complaint did not attack the validity
of these provisions. However, it did contend that the suit was to
restrain the enforcement or execution o f a statute on the ground
o f its unconstitutionality an,d therefore properly was before three
judges. Rejecting this claim, Mr. Justice Frankfurter said:
“ The claim proves too much. Probably most o f the actions of
governors trace back to the common provision charging them
with taking care that the laws be faithfully executed. Some
constitutional or statutory provision is the ultimate source
and all actions by state officials. But attack on lawless exer
cise o f authority in a particular case is not an attack upon the
constitutionality o f a statute conferring the authority even
though a misreading o f the statute is invoked as justification.
At least not within the Congressional scheme o f § 266. ...”
[Judicial Code o f 1911, former 28 U.S.C. §3 80 (1940),
present 28 U.S.C.. § 2281 ]. 312 U.S. at 252.
The remedy sought by the Plaintiffs below is an order by the
District Court requiring the State Defendants to exercise their
power to bring about the desegregation o f the Detroit school
system. The State Defendants have this power through statutes
enacted by the Michigan Legislature. Hence, an order o f the Dis
trict Court would condition the state officials’ enforcement of
these statutes in a manner that would effectuate the desired
remedy. It cannot seriously be argued that Plaintiffs in this case
are seeking to invalidate the statutes through which appropriate
state officials will grant relief, t186! for this reason, 28 U.S.C,
§2281 does not apply.
[186] AmiciCuriae, Bloomfield Hills School District, e t al. have cited Spencer
v. K u gler , 326 F. Supp. 1235 (D.N.J. 197 1), a ff’d, 404 U.S. 1027 (1972) for
the proposition that a three judge court , is required in the instant case. In
Spencer, Plaintiffs sought to challenge the constitutionality of New Jersey’s
statutory scheme establishing the boundaries of school districts to coincide
with the boundaries of the state’s political subdivisions. In the instant case,
Plaintiffs do not seek to challenge the constitutionality of any Michigan
statutes other than Public Act 48. (See f.n. 105 supra).
125
CONCLUSION
For the reasons above stated it is respectfully submitted that
this Honorable Court affirm the decision o f the Court o f Appeals
for the Sixth Circuit.
Respectfully submitted,
GEORGE T. ROUMELL, JR.
RILEY AND ROUMELL
THOMAS M. J. HATHAWAY
JOHN F. BRADY
GREGORY P. THEOKAS
STANLEY C. MOORE, III
C. NICHOLAS REVELOS, O f C o u n sel
720 Ford Building
Detroit, Michigan 48226
Telephone: 313/962-8255
C ou n sel f o r R e sp o n d e n ts ,
BOARD OF EDUCATION FOR
THE SCHOOL DISTRICT OF
THE CITY OF DETROIT,
a school district of the first class;
Pa t r ic k McDo n a l d ,
JAMES HATHAWAY and
CORNELIUS GOLIGHTLY
members of the Board of
Education For The School District
of the City of Detroit and
NORMAN DRACHLER, Superintendent
of the Detroit Public Schools.
Dated: February 2, 1974
1 2 6
EXHIBIT I
PERCENTAGE OF TOTAL
REVENUE OF 54 METRO
AREA DISTRICTS (BY SOURCE)
District Local Revenue State Aid
Allen Park 66
Berkley 59
Birmingham 82
Bloomfield Hills 83
Centerline 78
Cherry Hill 37
Clarenceville 64
Clawson 43
Crestwood 58
Dearborn 94
Dearborn Hts. 37
Detroit 47
East Detroit 47
Ecorse 86
Fairlane
Farmington 65
Ferndale 57
Fitzgerald 85
Fraser 49
Garden City 36
Grosse Pointe 88
Hamtramck 85
Harper Woods 89
Hazel Park 46
Highland Park 64
Inkster 26
Lakeshore 35
Lakeview 45
Lamphere 75
Lincoln Park 55
Livonia 66
Madison Hts. 44
33
39
18
17
20
60
35
56
41
5
62
40
50
9
(information not available)
33
39
14
50
63
11
6
10
50
23
61
63
52
24
43
33
53
127
District Local Revenue State Aid
Melvindale 76 23
N. Dearborn Hts. 65 34
Oak Park 90 8
Redford Union 57 42
River Rouge 92 3
Riverview 97 2
Romulus 70 27
Roseville 45 53
Royal Oak 64 34
South Lake 66 32
South Redford 86 13
Southfield 85 15
Southgate 54 45
Taylor 54 44
Troy 80 18
Van Dyke 75 24
Warren 65 33
Warren Woods 40 58
Wayne 55 43
West Bloomfield 63 35
Westwood 62 35
Wyandotte 70 26
Source: Ranking o f Michigan Public High School-School District
by Selected Financial Data, 1971-72, Bulletin 1012,
Michigan State Department of Education (1973).
125
CONCLUSION
For the reasons above stated it is respectfully submitted that
this Honorable Court affirm the decision o f the Court o f Appeals
for the Sixth Circuit.
Respectfully submitted,
GEORGE T. ROUMELL, JR.
RILEY AND ROUMELL
THOMAS M. J. HATHAWAY
JOHN F. BRADY
GREGORY P. THEOKAS
STANLEY C. MOORE, III
C. NICHOLAS REVELOS, O f C ou n sel
720 Ford Building
Detroit, Michigan 48226
Telephone: 313/962-8255
C o u n sel f o r R e sp o n d e n ts ,
BOARD OF EDUCATION FOR
THE SCHOOL DISTRICT OF
THE CITY OF DETROIT,
a school district of the first class;
Pa t r ic k McDo n a l d ,
JAMES HATHAWAY and
CORNELIUS GOLIGHTLY
members of the Board of
Education For The School District
of the City of Detroit and
NORMAN DRACHLER, Superintendent
of the Detroit Public Schools.
Dated: February 2, 1974
126
EXHIBIT I
PERCENTAGE OF TOTAL
REVENUE OF 54 METRO
AREA DISTRICTS (BY SOURCE)
District Local Revenue State Aid
Allen Park 66
Berkley 59
Birmingham 82
Bloomfield Hills 83
Centerline 78
Cherry Hill 37
Clarenceville 64
Clawson 43
Crestwood 58
Dearborn 94
Dearborn Hts. 37
Detroit 47
East Detroit 47
Ecorse 86
Fairlane
Farmington 65
Ferndale 57
Fitzgerald 85
Fraser 49
Garden City 36
Grosse Pointe 88
Ham tram ck 85
Harper Woods 89
Hazel Park 46
Highland Park 64
Inkster 26
Lakeshore 35
Lakeview 45
Lamphere 75
Lincoln Park 55
Livonia 66
Madison Hts. 44
33
39
18
17
20
60
35
56
41
5
62
40
50
9
(information not available)
33
39
14
50
63
11
6
10
50
23
61
63
52
24
43
33
53
District L oca l R evenue State A id
Melvindale 76 23
N. Dearborn Hts. 65 34
Oak Park 90 8
Redford Union 57 42
River Rouge 92 3
Riverview 97 2
Romulus 70 27
Roseville 45 53
Royal Oak 64 34
South Lake 66 32
South Redford 86 13
Southfield 85 15
Southgate 54 45
Taylor 54 44
Troy 80 18
Van Dyke 75 24
Warren 65 33
Warren Woods 40 58
Wayne 55 43
West Bloomfield 63 35
Westwood 62 35
Wyandotte 70 26
Source: Ranking o f Michigan Public High School-School District
by Selected Financial Data, 1971-72, Bulletin 1012,
Michigan State Department o f Education (1973).
IN THE
SUPREME COURT OF THE UNITED STATES
October Term 1973
No. 73-434
WILLIAM G.MILLIKEN, ET AL.,
vs.
RONALD G. BRADLEY, ET AL.,
P etition ers,
R esp o n d en ts .
No. 73-435
ALLEN PARK PUBLIC SCHOOLS, ET AL.,
vs.
RONALD G. BRADLEY, ET AL.,
P etition ers,
R esp o n d e n ts .
No. 73-436
THE GROSSE POINTE PUBLIC SCHOOL SYSTEM,
P etition er ,
vs.
RONALD G. BRADLEY, ET AL.,
R esp o n d en ts .
On Writs of Certiorari to the United States Court of
Appeals for the Sixth C ircuit.
APPENDIX TO BRIEF FOR RESPONDENTS
BOARD OF EDUCATION FOR THE SCHOOL
DISTRICT OF THE CITY OF DETROIT, ET AL.,
GEORGE T . R O U M E L L , J R .
RILEY A N D R O U M E L L
THOM AS M . J. H A T H A W A Y
JOHN F. B R A D Y
G R E G O R Y P. T H E O K A S
ST AN L E Y C . M O O R E , III
C N IC H O L A S R E V E L O S , O f Counsel
120 F o rd B u ild in g
D etroit, M ich ig a n 4 8 2 2 6
T e lep h on e : 3 1 3 /9 6 2 - 8 2 5 5
C ounsel f o r R espondents,
BOARD OF EDUCATION FOR
THE SCHOOL DISTRICT OF
THE CITY OF DETROIT,
a school district of the first class;
Pa t r i c k McDo n a l d ,
JAMES H ATH AW AY and
CORNELIUS GOLIGHTLY,
members of the Board of
Education For The School District
of the City of Detroit and
NORMAN DRACHLER, Superintendent
of the Detroit Public Schools.
1
INDEX TO APPENDIX TO BRIEF
FOR RESPONDENTS BOARD OF EDUCATION
FOR THE SCHOOL DISTRICT OF THE
CITY OF DETROIT, et al.
Page
CONSTITUTIONAL PROVISIONS
Northwest Ordinance o f 1787, Article III .................... .. laa
Michigan Constitution o f 1835, Article X ........................... laa
Michigan Constitution o f 1850, Article XIII ...................... 2aa
Michigan Constitution o f 1908, Article XI ......................... 3aa
Michigan Constitution o f 1963, Article VIII ...................... 4aa
UNITED STATES STATUTES
Judicial Code, 28 U.S.C. §2281 ........................................... 5aa
FEDERAL RULES OF CIVIL PROCEDURE
Fed. R. Civ. P. 19 ................................................................... 6aa
Fed. R. Civ. P. 24 .................................................................... 7aa
MICHIGAN PUBLIC ACTS
Act 315, Mich. Pub. Acts o f 1901 ......................................... 9aa
Act 239, Mich. Pub. Acts o f 1967 .................................... .. . 12aa
Act 32, Mich. Pub. Acts o f 1968 ............................................ 16aa
Act 24t^ Mich. Pub. Acts o f 1969 ........................................ i
Act 48, § 12 Mich. Pub. Acts o f 1970 ...................................21aa
Act 134, Mich. Pub. Acts o f 1971 ..........................................21aa
Act 255, Mich. Pub. Acts o f 1972 ..........................................39aa
Act 1, Mich. Pub. Acts o f 1973 .............................................. 43aa
Act 2, Mich. Pub. Acts o f 1973 .............................................. 46aa
Act 12, Mich. Pub. Acts o f 1973 ............................................50aa
MICHIGAN STATUTES
Michigan Compiled Laws Annotated
§340.69 .................................................................................... 53aa
§240.121(d) ..............................................................................53aa
§340.183 et seq........................................................................... 53aa
§340.251 et seq........................................................................... 54aa
§340.302a ................................................................................57aa
§ 340.303a .......... 59aa
§340.330 .................................................................................. 60aa
§ 340.330a ................................................................................61aa
11
_Page_
Michigan Compiled Laws Annotated
§340.355 .................................................................................61 aa
§340.359 ................................................................................. 6 laa
§340.361 ........................... 61aa
§ 340.461 et seq...........................................................................62aa
§340.569 .................................................................................. 66aa
§340.575 .................................................................................. 67aa
§340.582 .................................................................................. 67aa
§340.583 .................................................................................. 67aa
§340.589 .................................................................................. 68aa
§340.600 ...................................................................................82aa
§340.781 68aa
§340.782 .................................................................................68aa
§340.789 ................................................................. 69aa
§340.887(1) ..............................................................................69aa
§340.371 70aa
§3 88.629 ................................................................................. 82aa
§388.643 .................................................................................82aa
§388.681 et seq.......................................................................... 71 aa
§388.851 ................................................................. ............... 79aa
§388.1010 ............................................................................... 80aa
§388.1117 ............................................................................... 80aa
§388.1 171 ............................................................................... 80aa
§388.1234 ............................................................................... 81aa
laa
CONSTITUTIONAL PROVISIONS
NORTHWEST ORDINANCE 1787
Art. IH Religion, morality, and knowledge being necessary to
good government and the happiness of mankind, schools and the means
of education shall forever be encouraged. The utmost good faith shall
always be observed towards the Indians; their lands and property shall
never be taken from them without their consent; and in their property,
rights, and liberty they never shall be invaded or disturbed, unless in
just and lawful wars authorized by Congress; but laws founded in
justice and humanity shall, from time to time, be made, for preventing
wrongs being done to them, and for preserving peace and friendship
with them.
MICHIGAN CONSTITUTION OF 1835
ARTICLE X—EDUCATION
Superintendent of public instruction, appointment, term.
L The Governor shall nominate, and, by and with the advice and
consent of the legislature in joint vote, shall appoint a Superintendent
of Public Instruction, who shall hold his office for two years, and
whose duties shall be prescribed by law.
Perpetual fund for support of schools.
2. The legislature shall encourage, by all suitable means, the pro
motion of Intellectual, Scientifical and Agricultural improvement—
The proceeds of all lands that have been, or hereafter may be, granted
by the United States to this state, for the support of schools, which
shall hereafter be sold or disposed of, shall be and remain a perpetual
bmd; the interest of which, together with the rents of all such unsold
^ds, shall be inviolably appropriated to the support of schools
■throughout the State.
Common school system, yearly term.
3. The legislature shall provide for a system of Common Schools,
by which a school shall be kept up and supported in each school dis-
tnct, at least three months in every year; and any school district
neglecting to keep up and support such a school may be deprived of
its equal proportion of the interest of the public fund.
2aa
libraries*
4. As soon as the circumstances of the state will permit, the legs
lature shall provide for the establishment of Libraries,.one at least
in each township; and the money which shall be paid by persons as an
equivalent for exemption from military duty, and the dear proceeds
of all fines assessed in the several counties for any breach of the penal1
laws, shall be exclusively applied for the support of said libraries.
University fund.
5. The legislature shall take measures for the protection, improve*
ment or other disposition of such lands as have been, or may hereafter1
be, reserved or granted by the United States to this state for the sup*
port of a University; and the funds accruing from the rents or saleoi
such lands, or from any other source, for the purpose aforesaid, shall
be and remain a permanent fund for the support of said University
with such branches as the public convenience may hereafter demand,
for the promotion of literature, the arts and sciences, and as may it
authorized by the terms of such grant: and it shall be the duty of tit
legislature, as soon as may be, to provide effectual means for the im
provement and permanent security of the funds of said University.
I■
J
MICHIGAN CONSTITUTION OF 1850
ARTICLE 13—EDUCATION
Supervision by superintendent of public instruction.
Sec. L The superintendent of public instruction shall have the gen
eral supervision of public instruction, and his duties shall be prescribed
bylaw.
Primary schools; instructions in English language.
Sec. 4. The legislature shall, within five years from the adoption of
this constitution, provide for and establish a system of primary school
whereby a school shall be kept without charge for tuition, at leas*
three months in each year, in every school district in the state, and ad
instruction in said school shall be conducted in the Rnglish language.
3aa
State board of education*
gee, 9. There shall be elected at the general election in the year one
thousand eight hundred and fifty-two three members of a state board
of education; one for two years, one for four years, and one for six
years; and at each succeeding biennial election there shall be elected
one member of such board, who shall hold his office for six years. The
superintendent of public instruction shall be ex officio a member and
secretary of such board. The board shall have the general supervision
of the state normal school, and their duties shall be prescribed by law.
MICHIGAN CONSTITUTION OF 1908
ARTICLE XI—EDUCATION
Superintendent of public instruction; election; term; duties; compen
sation
Sec. 2. A superintendent of public instruction shall be elected at
the regular election to be held on the first Monday in April, nineteen
hundred nine, and every second year thereafter. He shall hold office
for a period of two years from the first day of July following his elec
tion and until his successor is elected and qualified. He shall have
general supervision of public instruction in the state. He shall be a
member and secretary of the state board of education. He shall be
ex-officio a member of all other boards having control of public in
struction in any state institution, with the right to speak but not to
vote. His duties and compensation shall be prescribed by law.
State board of education; election; powers and duties
Sec- 6. The state board of education shall consist of 4 members.
°n the first Monday in April, 1909, and at each succeeding biennial
spring election, there shall be elected 1 member of such board who
shall hold his office for 6 years from the first day of July following his
election. The state board of education shall have general supervision
of the state normal college and the state normal schools, and the du
ties of said board shall be prescribed by law.
4aa
Primary school system
Sec. 9. The legislature shall continue a system of primary schools,
whereby every school district in the state shall provide for the educa-
tion of its pupils without charge for tuition; and all instruction in
such schools shall be conducted in the English language. If any schooi
district shall neglect to maintain a school within its borders as prê ’
scribed by law for at least 5 months in each year, or to provide for
the education of its pupils in another district or districts for an equal
period, it shall be deprived for the ensuing year of its proportion of
the primary school interest fund. If any school district shall, on the
second Monday in July of any year, have on hand a sufficient amount
of money in the primary school interest fund to pay its teachers for1
the next ensuing 2 years as determined from the pay roll of said dis
trict for the last school year, and in case of a primary district, all
tuition for the next ensuing 2 years, based upon the then enrollment
in the seventh and eighth grades in said school district, the children
in said district shall not be counted in making the next apportionment
of primary school money by the superintendent of public instruction; ’
nor shall such children be counted in making such apportionment until
the amount of money in the primary school interest fund in said dis
trict shall be insufficient to pay teachers’ wages or tuition as herein set
forth for the next ensuing 2 years.
MICHIGAN CONSTITUTION OF 1963
ARTICLE 8-—EDUCATION 5
5 2. Free elementary and secondary schools; discrimination; nonpubllc school*,
state aid
See. 2. The legislature shall maintain and support a system of free public eb
mentary and secondary schools as defined by law. Every school district shall pro-
vide for the education of its pupils without discrimination as to religion, creed,
race, color or national origin.
No public monies or property shall be appropriated or paid or any public credit
utilized, by the legislature or any other political subdivision or agency of the staff
directly or indirectly to aid or maintain any private, denominational or otW
nonpublic, pro-elementary, elementary, or secondary school. No payment, credit
tax benefit, exemption or deductions, tuition voucher, subsidy, grant or loan»
public monies or property shall be provided, directly or indirectly, to support ®
attendance of any student or the employment of any person at any such nonput'M
school or at any location or institution where instruction is offered in whole or ®
part to such nonpublic school students. The legislature may provide for the trans-
imitation of students to and from any school.
5aa
§ 3, State board of education; duties
Sec. 3. Leadership and general supervision over all public educa
tion, including adult education and instructional programs in state
institutions, except as to institutions of higher education granting
baccalaureate degrees, is vested in a state board of education. It shall
serve as the general planning and coordinating body for all public
education, including higher education, and shall advise the legislature
as to the financial requirements in connection therewith.
Superintendent of public instruction; appointment, powers, duties
The state board of education shall appoint a superintendent of public
instruction whose term of office shall be determined by the board. He
shall be the chairman of the board without the right to vote, and shall
be responsible for the execution of its policies. He shall be the prin
cipal executive officer of a state department of education which shall
have powers and duties provided by law.
State board of education; members, nomination, election, term
The state board of education shall consist of eight members who
shall be nominated by party conventions and elected at large for terms
of eight years as prescribed by law. The governor shall fill any
vacancy by appointment for the unexpired term. The governor shall
be ex-officio a member of the state board of education without the
right to vote.
Boards of institutions of higher education, limitation
The power of the boards of institutions of higher education provided
in this constitution to supervise their respective institutions and con
trol and direct the expenditure of the institutions' funds shall not be
limited by this section.
UNITED STATES STATUTES
Judicial Code, 28 U.S.C. §2281 provides:
§2281. Injunction against enforcement of State statute;
three-judge court required
6aa
An interlocutory or permanent injunction restraining the
enforcement, operation or execution of any State statute by
restraining the action of any officer of such State in the en
forcement or execution of such statute or of an order made
by an administrative board or commission acting under State
statutes, shall not be granted by any district court or judge
thereof upon the ground of the unconstitutionality of such
statute unless the application therefor is heard and determin
ed by a district court of three judges under section 2284 of
this title.
FEDERAL RULES OF CIVIL PROCEDURE
Fed. R. Civ. P. 19 provides:
Rule 19. Joinder of Persons Needed for Just Adjudication
(a) Persons to be Joined if Feasible. A person who is sub
ject to service of process and whose joinder will not deprive
the court of jurisdiction over the subject matter of the action
shall be joined as a party in the action if (1) in his absence
complete relief cannot be accorded among those already
parties, or (2) he claims an interest relating to the subject of
the action and is so situated that the disposition of the action
in his absence may (i) as a practical matter impair or impede
his ability to protect that interest or (ii) leave any of the per
sons already parties subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent obligations by
reason of his claimed interest. If he has not been so joined,
the court shall order that he be made a party. If he should
join as a plaintiff but refuses to do so, he may be made a
defendant, or, in a proper case, an involuntary plaintiff. If
the joined party objects to venue and his joinder would
render the venue of the action improper, he shall be dis
missed from the action.
7aa
(b) Determination by Court Whenever Joinder not Feas
ible. If a person as described in subdivision (a) (1>(2) hereof
cannot be made a party, the court shall determine whether in
equity and good conscience the action should proceed among
the parties before it, or should be dismissed, the absent per
son being thus regarded as indispensable. The factors to be
considered by the court include: first, to what extent a judg
ment rendered in the person’s absence might be prejudicial to
him or those already parties; second, the extent to which, by
protective provisions in the judgment, by the shaping of
relief, or other measures, the prejudice can be lessened or
avoided; third, whether a judgment rendered in the person’s
absence will be adequate; fourth, whether the plaintiff will
(c) Pleading Reasons for Nonjoinder. A pleading asserting
a claim for relief shall state the names, if known to the
pleader, of any persons as described in subdivision (a) (1 M 2)
hereof who are not joined, and the reasons why they are not
joined.
(d) Exception of Class Actions. This rule is subject to the
provisions of Rule 23.
Fed. R. Civ. P. 24 provides:
Bale 24. Intervention.
(a) iN T E B V E N T io ir o f R i g h t . Upon timely application
anyone shall be permitted to intervene in an action:
(1) when a statute of the United States confers an un
conditional right to intervene; or (2) when the appli
cant claims an interest relating to the property or trans
action which is the subject of the action and he is so
situated that the disposition of the action may as a
practical matter impair or impede his ability to protect
that interest, unless the applicant’s interest is adequately
represented by existing parties.
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(b) Permissive Intehvehtioit. Upon timely applica
tion anyone may be permitted to intervene in an action:
(1) when a statute of the United States confers a con
ditional right to intervene; or (2) when an applicant’s
claim or defense and the main action have a question of
law or fact in common. When a party to an action
relies for ground of claim or defense upon any statute or
executive order administered by a federal or state govern
mental officer or agency or upon any regulation, order,
requirement, or agreement issued or made pursuant to
the statute or executive order, the officer or agency
upon timely application may be permitted to intervene
in the action. In exercising its discretion the court
shall consider whether the intervention will unduly
delay or prejudice the adjudication of the rights of the
original parties.
(c) P r o c e d u r e . A person desiring to intervene shall
serve a motion to intervene upon the parties as provided
in Rule 5. The motion shall state the grounds therefor
and shall be accompanied by a pleading setting forth the
claim or defense for which intervention is sought. The
same procedure shall be followed when a statute of the
United States gives a right to intervene. When the con
stitutionality of an act of Congress affecting the public
interest is drawn in question in any action to which the
United States or an officer, agency, or employee thereof
is not a party, the conrt shall notify the Attorney General
of the United States as provided in Title 28, U.S.C., § 2403.
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MICHIGAN PUBLIC ACTS
ACT 315, MICH. PUB. ACTS OF 1901
AN ACT to incorporate the public schools of the village of
Jerome, Hillsdale county. Michigan: define the boundaries
thereof, provide for the election of trustees and fix their
powers and duties, and provide for the distribution of the
territory of the disorganized districts.
The People o f the State o f M ichigan en act:
Section 1. That so much of the township of Somerset in
the county of Hillsdale and the township of Moscow in the
county of Hillsdale as are included in the following descrip
tions and boundaries, viz: A ll those lands situate in town
five south of range one west, known and described as sections
seventeen, eighteen, nineteen, twenty and thirty, and the west
half of section eight, and section seven excepting the west half
of the northwest quarter thereof, and the north half of section
ihirty-one excepting the south half of the east half of the
northeast quarter thereof, and the north half of section thirty-
two, excepting the south half of the west half of the north
west quarter thereof, and the west half and the south half
of the southeast quarter and the northwest quarter of the
northwest quarter all on section twenty-nine, and the north
west quarter of section twenty-one. and the west half of the
west half and the southeast quarter of the southwest quarter
of section sixteen, and all those lands situate in town five
south of range two west, described as the east half of the
southeast quarter of section thirteen, and all of section
twenty-four excepting the west half of the west half Thereof,
and all of section twenty-five excepting the west half of the
west half thereof, and the northeast quarter of the northeast
quarter of section thirty-six, shall constitute a single school
district to be known and designated as the public schools of
the village of Jerome, and such school district shall have all
the powers and privileges conferred upon school districts,
and union ahd graded school districts, by general law, and
hereafter all schools established therein, in pursuance of
this act, under the direction and regulation of the school
hoard shall be public and free to all children actual residents
within the limits thereof.
Sec. 2. The officers of said district shall consist of trus
tees T. J. Lowrey, H. S. Walworth, C. H. Manzer, C. M. Bross,
” • L. Bibbins, of the school district heretofore known as
fractional school district number two of the townships of
Somerset and Moscow, and Jay Chandler of the school dis
trict heretofore known as district number seven of the town-
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ship of Somerset, whose powers and duties shall be severally
the same as those conferred upon and required of the moder
ator, director and assessor of school districts in this State
except so far as the same are varied or modified by the pro
visions of this act, or other acts relating to said district, who
shall be and are hereby constituted the trustees and officers
of the public schools of the village of Jerome; w’hose term of
office shall continue until their successors shall be elected and
qualified as hereinafter provided. Said board shall within
twenty days after this act shall take effect meet and by lot
divide into three equal divisions the terms of office of which
shall expire as follows: The first division, at the time of the
first annual school meeting held under the provisions of this
act; the second division, at the time of the second annual
meeting; and the third division at the time of the third an
nual meeting; and at the same meeting of the board they shall
elect from their own number a president, secretary and treas
urer. whose terms of office shall continue until the next annual
meeting of said district. Said board of trustees shall have
power to fill all vacancies that may occur in their number, or
in the officers appointed by them, until the next annual meet
ing of said district.
Sec. 3. A t the annual meeting on the first Monday of July
in each year there shall be elected by ballot two trustees
whose term of office shall be three years, or until their sue-1
cessors are elected and qualified; and within ten days after
each annual meeting the trustees shall meet and elect from
their own number a president, secretary and treasurer for
the ensuing year.
Sec. 4. From and after the passage of this act said board
of trustees shall have all the powers and privileges conferred
upon union and graded school districts by general law, and all
the powers and duties of school inspectors of townships iu
this State shall be vested in and required of said board of
Irustees. who shall be ex officio the board of school inspectors
of the public schools of the village of Jerome and shall make
their annual reports to the superintendent of public instruc
tion as other boards of school inspectors are required to do
under the general school laws.
Sec. 5. Said board of trustees shall hire and contract with
such duly qualified teachers as may be required in the schools,
and shall provide all necessary appendages for the school
house, to keep the same in good condition and repair, and
shall keep an accurate account of all expenses incurred by
1 hem and all claims for such expenses shall be audited by said
board of trustees and paid by the treasurer out of any money
provided by the district for that purpose, on the order of the
secretary, countersigned by the president of the board. Said
board shall present at each annual meeting of the district a
statement of all receipts, expenditures and accounts audited
aqd allowed by them, together with the amount of the ex-
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penses necessary to be incurred during the ensuing year for
such purposes and to pay the debts of the district and for the
services of any teacher or any district officer, and such money
when voted by any annual meeting shall be assessed and col
lected in the same manner as other district taxes but no tax
for these purposes shall be voted at a special meeting, unless
a notice of the same shall be expressed in the notice of such
meeting.
Sec. 6. The treasurer of said district within ten days after
his election and before he enters upon the duties of his office,
shall give a bond to said district in such sum and with such
sureties as shall be approved by the district board conditioned
for the faithful discharge of the duties of said office and to
account for and pay over all moneys that shall come into his
hands by virtue of said office and he shall have power by suit
at law, under the direction of the district board and in the
name of the public schools of the village of Jerome, to collect
all moneys due said district, or said public schools, from the
several township treasurers, or for the tuition of children who
are not actual residents of said district, or that may be due
said district from any other source whatever. The bond of
said treasurer shall be tiled with the secretary of the board of
trustees.
Sec. 7. A ll the lands, school houses and sites, together
with the furniture, libraries, property, effects and estates and
all property real or personal of the districts, formerly known
as district number three, district number seven of the town
ship of Somerset and fractional district number eight of the
townships of Somerset and Moscow are hereby transferred
to and declared the property of the public schools of the
village of Jerome and it is expressly provided that all amounts
due the said districts formerly known as district number three
and district number seven of the township of Somerset and
fractional district number eight of the townships of Somerset
and Moscow from whatever source shall become due and pay
able to the public schools of the village of Jerome; and it is
further provided that all debts and obligations against the
school district formerly known as district number three and
district number seven of the township of Somerset and frac
tional district number eight of the townships of Somerset
and Moscow contracted before the passage of this act shall
become the debts and obligations of the public schools of the
image of Jerome and shall be paid by the board of trustees
of the public schools of the village of Jerome upon proper
proof of the validity of such debt or obligation.
i-Ec. 8. Suits may be brought by or against the public
T h°° 8 ^ le 'ullage of Jerome on all contracts, obligations,
‘ ebts, bonds or demands^ due or unpaid from or to said frac
tional school district number two of the townships of Somer
set and Moscow in like manner as they might have been by
01 against said school district if this act had not been passed.
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Sr:c. 9. The site located heretofore and now held by said
fractional school district number two aforesaid shall be and
the same is hereby declared and deemed to be a school house
site for the public schools of the village of Jerome and the
school building now owned and occupied by said frac
tional school district number two aforesaid is hereby made
and declared to be the central school building of the public
schools of the village of Jerome, to be used for the academic J
and more advanced classes of scholars and such other classes ;
of scholars as the board of trustees shall deem necessary.
S e c . 10. The board of trustees of the public schools of the
village of Jerome, as constituted in section two of this act,
shall have power to sell at private or public sale the school
buildings and sites owned by districts formerly known as
district number three and district number seven of the town
ship of Somerset and fractional district number eight of the
townships of Somerset and Moscow', and the moneys received
from such sale of said buildings and real estate may be used
by said board of the public schools of the village of Jerome
to make such repairs, improvements and additions to the
central school building as they may deem necessary.
Sec. 11. Within thirty days after this act shall take effect
the board of school inspectors of said township of Somerset
shall meet and attach to other districts in whole or in part
within the boundaries of said township, such parts of said dis
tricts formerly known as district number three and district
number seven of the township of Somerset and fractional dis
trict number eight of the townships of Somerset and Moscow
as are not by this act included within the boundaries of said
public schools of the village of Jerome: Provided, That the
said board of trustees of the public schools of the village of ,
Jerome shall fulfil all contracts now existing in any of the dis
tricts affected by the provisions of this act.
This act is ordered to take immediate effect.
Approved March 1, 1901.
ACT 239, MICH. PUB. ACTS OF 1967
AN ACT to provide recognition of a state of emergency in certain school district!
the state; to provide for continuance of the state committee on reorganization of set'
districts; and to provide certain powers and duties of the state board of education
connection therewith.
The People of the State of Michigan enact:
388.711 Reorganization o f school d istricts; determ ination of emergel1'
[M .S .A . 1 5 .2 2 9 9 (5 1 )]
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Sec. 1. The state committee for the reorganization of school districts, created by Act
No. 289 of the Public Acts of 1964, being sections 388.681 to 388.693 of the Compiled
Laws of 1948 shall determine the existence of an emergency warranting immediate re
organization within any primary school district or school district of the fourth class not
reorganized under the provisions of Act No. 289 of the Public Acts of 1964.
388.7 1 2 Applicability of act to counties over 1 ,000 ,000 ; petitions to determine
emergency. [M .S .A . 1 5 .2 2 9 9 (5 2 )]
Sec. 2. This act applies only to school districts lying wholly in, or the major part of
the territory of which lies wholly in, a county having a population of more than 1,000,000.
The board of education or 5% of the school electors, but not less tharr 5 electors in a pri
mary school district or less than 25 electors in a school district of the fourth class, of any
primary school district or school district of the fourth class not reorganized under the
provisions of Act No. 289 of the Public Acts of 1964, may petition the state committee
to determine if an emergency warranting immediate reorganization exists within the district.
|
388.713 Study to determine em ergency; hearing. [M .S .A . 1 5 .2 2 9 9 (5 3 )]
Sec. 3. Upon receipt of the petition, the state committee shall conduct, or cause to be
conducted, an impartial study to determine if an emergency exists. Within 20 days following
publication of the results of the study, a member of the state committee, or the secretary
designated by the committee, shall hold a hearing in the district. Notice of the time and
place of the hearing shall be given the voters of the district and the superintendent of the
intermediate school district to which the district is constituent.
388.7 1 4 Findings; m atters included. [M .S .A . 1 5 .2 2 9 9 (5 4 )]
Sec. 4. Within 20 days following receipt of a transcript of the hearing, the state com
mittee shall make a finding relative to the existence of a condition or conditions warranting
immediate reorganization of the district. The finding shall include consideration of the
adequacy of the district to provide the following:
W An educational program meeting standards established by the state department of
education or by accrediting agencies.
(b) A physical plant which can contain an acceptable school program.
(c) Transportation for students.
(d) Necessary tax base.
(e) Pupil services, administrative and teaching staff, and auxiliary services in com
pliance with rules prescribed by the department of education.
388.715 Report and recom m endations. [M .S .A . 1 5 .2 2 9 9 (5 5 )]
Sec. 5. Upon a finding by the state committee that conditions in a school district
"’arrant immediate reorganization, the state committee shall transmit its report with
recommendations to the state board of education.
; 388.716 Publication of report and recommendations; objections; determination.
IM.S.A. 15 .2299(56)]
' thê T State k°ard of education shall publish the report and recommendations of
20 / ! com™ t*;ee and shall invite objections or comments to be filed with it within
of S ‘ °'[°w*ng publication of the report. The state board then shall consider the report
determ'State comm*tt;ee- together with the comments and objections filed, and make a
•nation as to endorsement of the finding of the state committee.
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388.717 A ttachm ent by annexation; effective date; conclusiveness. [M.S1
1 5 .2 2 9 9 (5 7 )]
Sec. 7. The state board of education, upon endorsement of the finding of the ft
committee that an emergency warrants immediate reorganization of a school district, sk
attach a portion of the district not to exceed 30% by area by annexation or division:
each contiguous district as will provide the most equitable educational opportunity It
all of the students of the reorganized district and shall determine the effective date
attachment. Action of the state board of education shall be final.
388.718 Reorganized d istrict; adjustm ent o f bonded indebtedness; levy:
taxes. [M .S .A . 1 5 .2 2 9 9 (5 8 )]
Sec. 8. If a district attached under the provisions of this act at the time of reorganii;
tion, has a bonded indebtedness incurred after December 8, 1932, its identity shall not 1
lost and its territory shall remain as an assessing unit for purposes of such bonded indebte!
ness until the indebtedness has been retired or the outstanding bonds refunded by the ir
organized district. The board of the reorganized district, or the board of the district *1
has succeeded to the largest share of the state equalized valuation of the attached distriti
shall constitute the board of trustees for the original district having bonded indebted®
and the officers of the reorganized or successor district shall be the officers for the origin!
district. The board of the reorganized or successor district shall certify and order the la]
of taxes for the bonded indebtedness in the name of the original district, shall not cot
mingle the debt retirement funds of the original district with funds of the reorganized!
successor district and shall do all things relative to such bonded indebtedness required!
law and by the terms under which the issue and sale of the bonds were originally auttaf
rzed. All other tax levies for purposes of the reorganized district shall be spread overt!
entire area of the reorganized district.
388.719 Reorganized districts’ assum ption of bonded indebtedness of an origin!
school district; effect; certification and levy o f tax es; election. [M.S1
15 .229 9(59 )]
Sec. 9. Any time after 3 years following reorganization, the reorganized district,!!
that district which has succeeded to the largest share of the attached district’s i f
equalized valuation, may assume the obligation of the bonded indebtedness incurred A
December 8, 1932, of the original district which has become a part of the reorganize
and pay the same from the proceeds of a debt retirement tax levy spread uniformly k
the territory of the reorganized or successor district whenever the electors of the (
organized or successor district shall have approved an increase in the limitation on ta
for that purpose and the school tax electors of the district have approved the assumpl!
of such bonded indebtedness. Assumption of the bonded indebtedness of an original sck(|
district shall not release the territory of the original district from the final responsibility;
paying the obligation or rescind the increase in the limitation on taxes pledged to the bos:
issue or available to it in the original district, nor be construed as so doing. When lb
bonded indebtedness of an original district has been so assumed, the board of the
organized or successor district shall certify and order the levy of taxes for the bortes
indebtedness equivalent in terms of money to those required by the terms under which t ,
indebtedness was originally incurred and carry out all provisions of the original bond c*
tract. The election to assume the bonded indebtedness of an attached district may be ®
at any time after 3 years following the effective date of reorganization when a proposa -
placed before the school tax electors to increase the bonded indebtedness of the combi11'
district. i
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388.720 Petitions; intermediate district superintendent to furnish; form; cir
culation signatures. [M.S.A. 15.2299(60)]
Sec. 10. The intermediate district superintendent upon request shall furnish any school
district with petitions. The petitions shall be printed or duplicated and the first page shall
be in the following form:
Petition no..................................consisting o f .................................................... pages.
(Signed) .................................................................................................
Superintendent of intermediate district of ........................................
To the state committee on reorganization of school districts, Lansing, Michigan.
We, the undersigned, qualified (here insert “registered” in the case of a registration
district) electors of ..........................................................................................................................................
(name of school district)
declare that in the following school district there does exist an emergency calling for
immediate reorganization, and we do call upon the state board of education to reorganize
the district:
Name of school district to be reorganized to be listed h e r e ........................................................
Signatures of petitioners
Name Address Date.of signing
Each additional page of any such petition shall have at or near the top of the page the
following;
Official petition
No........................................... Page no. ...............................
Signature of intermediate district superintendent ......................................................................
Each page shall have printed or duplicated the following statement below the space for
signature for petitioners:
The undersigned certifies that he is a qualified (here insert “ registered” in the case of *
registration district) elector of ....................................................................................................................
(name of school district)
and that each signature appearing on this page is the genuine signature of the person signing
the same and that to his best knowledge and belief each such person was at the time of
signing a qualified (here insert “ registered” in the case of a registration district) elector of
the school district.
Dated this .............................................. day of ............................................................ 1 9 . . . .
Each petition shall be signed by the intermediate district superintendent as indicated in
the foregoing form before being issued to any person for circulation.
Only qualified school electors of the districts in which signatures to the petitions are
being sought shall circulate such petitions and the statement appearing below the signatures
of petitioners shall be dated or signed on each page before returning to the state committee.
388 721 Effective date. [M .S .A . 1 5 .2 2 9 9 (6 1 )]
Sec. 11. This act shall not be effective after July 1, 1968.
This act is ordered to take immediate effect.
Approved July 12, 1967.
16aa
ACT 32, MICH. PUB. ACTS OF 1968
A N A C T t o p r o v i d e f o r e m e r g e n c y f i n a n c i a l a s s i s t a n c e f o r i n s o l v e n t s c h o o l districts;
t o p r e s c r i b e c e r t a i n p o w e r s a n d d u t i e s o f t h e i n t e r m e d i a t e b o a r d o f e d u c a t i o n i n connecliti
t h e r e w i t h ; t o p r o v i d e a p r o c e d u r e f o r r e o r g a n i z a t i o n o f s u c h s c h o o l d i s t r i c t s ; t o p r ov ide in
c o n t i n u a n c e o f t h e s t a t e c o m m i t t e e o n r e o r g a n i z a t i o n o f s c h o o l d i s t r i c t s ; t o p r o v i d e certaii
p o w e r s a n d d u t i e s o f t h e s t a t e b o a r d o f e d u c a t i o n i n c o n n e c t i o n t h e r e w i t h ; t o create at
e m e r g e n c y l o a n r e v o l v i n g f u n d ; a n d t o m a k e a n a p p r o p r i a t i o n .
The People of the State of Michigan enact:
388.201 Insolvent school districts, em ergency loans; definitions. [M.S.A.
15 .1916(101)]
S e c . 1 . A s u s e d i n t h i s a c t :
( a ) “ S c h o o l d i s t r i c t ” d o e s n o t i n c l u d e a n i n t e r m e d i a t e s c h o o l d i s t r i c t .
( b ) “ S t a t e b o a r d ” m e a n s t h e s t a t e b o a r d o f e d u c a t i o n .
388.202 Applicability of act. [M .S .A . 1 5 .191 6(10 2)]
S e c . 2 . T h e p r o c e d u r e s p r o v i d e d b y t h i s a c t m a y b e u s e d n o t w i t h s t a n d i n g a n y otte
p r o v i s i o n o f l a w t o t h e c o n t r a r y .
388.203 E ligibility for loan. [M .S .A . 15 .191 6(10 3)]
S e c . 3 . T h e h p a r d o f e d u c a t i o n o f a s c h o o l d i s t r i c t t h a t i n c u r s a d e f i c i t a n d is unabli
t o m e e t i t s f i n a n c i a l o b l i g a t i o n s i s e l i g i b l e t o a p p l y f o r a n e m e r g e n c y l o a n f r o m the stall
S u c h a d i s t r i c t s h a l l b e c o n s i d e r e d a n i n s o l v e n t d i s t r i c t .
388.204 Certification of insolvency; audit. [M .S .A . 15 .191 6(10 4)]
S e c . 4 . A s c h o o l d i s t r i c t t o b e e l i g i b l e f o r a n e m e r g e n c y l o a n s h a l l c e r t i f y , b a s e d upon
c e r t i f i e d a u d i t b y t h e s t a t e t r e a s u r y d e p a r t m e n t , t h a t t h e s c h o o l d i s t r i c t i s i n s o l v e n t .
388.205 Application f o r loan; am ount; review. [M .S .A . 15 .1916(105)]
S e c . 5 . T h e b o a r d o f e d u c a t i o n o f a s c h o o l d i s t r i c t m e e t i n g t h e c r i t e r i a se t forth'
s e c t i o n 4 m a y a p p l y t o t h e s t a t e b o a r d o f e d u c a t i o n f o r a n e m e r g e n c y l o a n t o meet '
f i n a n c i a l n e e d s u n t i l t h e e n d o f t h e f i s c a l y e a r i n w h i c h a p p l i c a t i o n i s m a d e . I f . a f t e r revitfj
t h e s t a t e b o a r d o f e d u c a t i o n f i n d s t h a t t h e d i s t r i c t m e e t s t h e c r i t e r i a s e t f o r t h in section:
a r e c o m m e n d a t i o n f o r a n e m e r g e n c y l o a n s h a l l b e s u b m i t t e d t o t h e g o v e r n o r f o r reviewar»|
r e c o m m e n d a t i o n t o t h e l e g i s l a t u r e .
388.206 Bonds, issuance, amount, term s; repayment of loan; budget; report
[M .S .A . 15.1916 (106) ] <
S e c . 6 . T h e b o a r d o f e d u c a t i o n o f a s c h o o l d i s t r i c t e l i g i b l e t o r e c e i v e a n emerges
l o a n u n d e r t h e p r o v i s i o n s o f t h i s a c t s h a l l i s s u e b o n d s i n t h e a m o u n t o f t h e e m e r g e n c y l®;
m a d e p a y a b l e t o t h e s t a t e o f M i c h i g a n , i n e q u a l i n s t a l l m e n t s , i n n o t m o r e t h a n 10 ye*
p l u s i n t e r e s t a t t h e s t a t u t o r y r a t e b e g i n n i n g w i t h t h e f i r s t f i s c a l v e a r a f t e r r e c e ip t o i »
l o a n . S u c h b o n d s s h a l l b e p a y a b l e o u t o f a n y f u n d s o f t h e s c h o o l d i s t r i c t in c l u d i n g sts|
a p p r o p r i a t i o n s a v a i l a b l e t o t h e s c h o o l d i s t r i c t u n d e r a n y a c t . T h e a m o u n t d u e o n s u c h b *
w i t h i n t e r e s t i n a n y f i s c a l y e a r s h a l l b e d e d u c t e d i n e q u a l p o r t i o n s f r o m t h e last 31
m e n t s o f s t a t e s c h o o l a i d d u e s u c h s c h o o l d i s t r i c t i n e a c h f i s c a l y e a r . S u c h b o n d s shall a
b e t h e f u l l f a i t h a n d c r e d i t o b l i g a t i o n s o f t h e s c h o o l d i s t r i c t a n d a l l t a x a b l e p r o p e r t y * * " '
s a i d s c h o o l d i s t r i c t s h a l l b e s u b j e c t t o t h e l e v y o f a d v a l o r e m t a x e s t o r e p a y t h e PrllKlj
a n d i n t e r e s t o b t a i n e d u n d e r s u c h b o n d s w i t h o u t l i m i t a t i o n a s t o r a t e o r a m o u n t . >tie|
o f e d u c a t i o n s h a l l s u b m i t i t s b u d g e t f o r r e v i e w a n d a p p r o v a l t o t h e b o a r d o t e d u t S 11"1 1
17aa
the intermediate district in which the greater portion of the district is geographically located.
This budget shall be a balanced budget and shall include a minimum repayment of 10%
of the original face amount of the loan received under this act, plus interest at the statutory
rate. The district shall submit a monthly expenditure report to the board of education of
the intermediate school district.
i
388.206a Operating m illage, m in im u m ; reorganization. [M .S .A . 1 5 .1 9 1 6 (1 0 6 a )]
Sec. 6a. However, any school district not levying a minimum of 20 mills for operating
purposes in the fiscal year for which it receives an emergency loan shall be reorganized
immediately by the state board of education following recommendation by the state com
mittee on reorganization of school districts.
388.207 Expenditures within revenues ; balanced budget. [M .S .A . 15 .191 6(10 7)]
Sec. 7. The board of education of the intermediate school district shall take any steps
necessary to assure that the expenditures of a school district which receives an emergency
loan under the provisions of this act shall not exceed revenues on an annual basis and that
the school district maintains a balanced budget.
388.209 Reorganization if unable to balance budget. [M .S .A . 1 5 .191 6(10 9)]
Sec. 9. If, upon application for an emergency loan, a board of education certifies that
■'he school district will not be able to balance its budget, the district shall be reorganized
by the state board of education following recommendation by the state committee on
reorganization of school districts.
388.210 Balanced b u d g et; reorganization. [M .S .A . 1 5 ,191 6(11 0)]
Sec. 10. A school district receiving an emergency loan under the provisions of this act
shall balance its budget in the fiscal year immediately following the fiscal year for which
it receives an emergency loan or, following recommendation by the state committee on
reorganization of school districts, shall be reorganized by the state board of education.
388.211 Default in loan repayment. [M .S .A . 1 5 .1 9 1 6 (1 1 1 )]
Sec. 11. A school district receiving an emergency loan under the provisions of this
net, which defaults in repayment of the loan, shall be reorganized by the state board of
education following recommendation by the state committee on reorganization of .school
districts.
388.212 Reorganization; hearing; notice; recommendations. [ M .S .A .
15-1916(112)]
Sec. 12. Prior to reorganization of a school district under this act, the state committee
wi reorganization of school districts shall hold a hearing in the district to be reorganized.
• otice of the time and place of the hearing shall be given the voters of all school districts
mvo ved in the proposed reorganization. The boards of education of the intermediate dis
tricts involved in the proposed reorganization shall make recommendations to the state
committee regarding the proposed reorganization.
388.213 Determination if reorganization warranted; report. [M .S .A .
15-1916(113)]
Sec. 13. Within 20 days after receipt of a transcript of the hearing and recommenda-
ns ° ‘ Ihe boards of education of the intermediate districts, the state committee on re-
Muation of school districts shall determine if conditions exist warranting immediate
^ganuation of the district under this act. Upon a determination by the state committee
shall COn̂ t'ons. ’n a school district warrant immediate reorganization, the state committee
transmit its report with recommendations to the state board of education.
18aa
388.214 Report and recom m endations; com m ents; determination [MS;
15 .191 6(11 4)]
Sec. 14. The state board of education shall publish the report and recommendaiie
of the state committee on reorganization of school districts and shall invite objections;
comments to be filed with it within 20 days following publication of the report. The sis
board then shall consider the report of the state committee, together with the commit
and objections filed, and make a determination as to indorsement of the finding oil!
state committee.
388.215 Reorganization by state board; finality. [M .S .A . 15.1916(115)]
Sec. 15. The state broad of education, upon indorsement of the finding of the sit.
committee on reorgan«’ ?-tio'ri of school districts that immediate reorganization of a self
district is warranted, shall reorganize the district with 1 or more districts contiguous lo
in such a manner as will provide the most equitable educational opportunity for all of it
students of the reorganized district, and shall determine the effective date of reorganization
Action by the state board of education shall be final.
388.216 Bonded indebtedness of attached district; trustees; determinationi;
responsibility. [M .S .A . 15 .191 6(11 6)]
Sec. 16. If a school district attached under the provisions of this act at the timeci
reorganization has a bonded indebtedness incurred after December 8, 1932, its identil;
shall not be lost and its territory shall remain as an assessing unit for purposes of sill
bonded indebtedness until the indebtedness has been retired or the outstanding bonds if
funded by the reorganized district. The board of the reorganized district, or the board;
of districts receiving school buildings with an existing bonded debt shall constitute lk
board of trustees for the original district having a bonded indebtedness and the officers!
the reorganized or successor district shall be the officers for the original district. If a?
original bonds of the reorganized district have been refinanced in any way, the state boil
of education shall make the final determination as to placement of the responsibility
the 1 or more boards of education receiving the buildings as to their responsibility in actiii
as the board of trustees for the original district. The board of each district assigned 4
responsibility as the board of trustees for any bonded indebtedness of the divided distrit
shall certify and order the levy of taxes for the bonded indebtedness in the name of U
original district. i
388.217 Assum ption of bonded indebtedness. [M .S .A . 15 .1916(117)]
Sec. 17. Any time after 3 years following the reorganization of a school district uni'
this act. a district receiving a building having an existing bonded indebtedness and assuriij
the responsibilities set forth in section 16, may assume the obligation of the bonded indebtj
edness incurred after December 8, 1932, of the school building attached to its distrit
under the provisions of this act, and pay the same from the proceeds of a debt retire*;,
tax levy spread uniformly over the territory of the reorganized or successor district wh
the electors of the reorganized or successor district approve an increase in the limfl
on taxes for that purpose and the school tax electors of the district have approved 4
assumption of such bonded indebtedness. Assumption of the bonded indebtedness of *
original school district does not release the territory of the original district from the 6*
responsibility of paying the obligation or rescind the increase in the limitation on We
pledged to the bond issue or available to it in the original district, nor be construed!
so doing. \Y hen the bonded indebtedness of an original district has been so assumed. I
board of the reorganized or successor district shall certify and order the levy of taxes;
the bonded indebtedness equivalent in terms of money to those required by the terms
which the indebtedness was originally incurred and carry out all provisions of the orig*
18AA
[N o. 244.]
AN ACT to require first class school districts to be divided into regional districts and
to provide for local district school boards and to define their powers and duties and the
powers and duties of the first class district board.
The People of the State of Michigan enact:
388.171 First class school district; division. [M .S .A . 15 .2298(1)]
Sec. 1. Not later than January 30, 1970, the school board of each first class district
shall divide its district into not less than 7 nor more than 11 regional school districts with
not more than 50,000 nor less than 25,000 students in each district.
388.172 Same; board; regional mem bers; present members, term. [M .S .A .
15.2298(2)]
Sec. 2. In addition to the present members of the first class board there shall be
elected by the registered and qualified electors of each district to the first class board 1
member from each of the districts for a term of 4 years. The members of the first class
school district board provided in section 2 to be elected by regions shall be elected in the
general election to be held in November, 1970 and every fourth year thereafter for a term
commencing on January 1 next following their election. The candidates shall be nominated
in primary elections in the manner provided by law for the present first class school district
members.
The term of office of the present first class school board members shall hereafter be
4 years. The terms of office of present first class school board members which expire
June 30, 1971 are extended to January 1, 1973. The term of office of present first class
school board members which expire June 30, 1973 are shortened to January 1, 1973. The
5 at large positions on the first class district school board which expire January 1, 1973
shall be filled at the general election to be held in November, 1972 for a term of 4 years.
The terms of office of present first class school district board members which expire on
June 30, 1975 are extended to January 1, 1977 and shall be filled at the general election
to be held in November, 1976 for a term of 4 years.
388.173 Regional boards; size; qualifications; election; term. [M .S .A .
15.2298(3)]
Sec. 3. In each regional district there shall be elected 9 members to the regional board.
No person shall be elected who is not a resident of the regional district from which he
is elected. The members shall be nominated and elected by the registered and qualified
E ectors of each district as is provided by law for the nomination and election of first
j-ass school board members except that signatures required on nominating petitions shall
e not less than 500 nor more than 1,000. The members shall be elected for terms of 4
>ears. Except that of the members elected at the general election in 1970 the 5 members
^caving the highest number of votes shall be elected for a term of 4 years and the 4
embers receiving the next highest number of votes shall be elected for a term of 2 years.
388.174 First class district board, powers. [M .S .A . 15 .2298(4)]
Sec. 4. The first class school district board shall retain all the powers and duties now
Ksessed by a first class school district except for those given to a regional school district
am under the provisions of this act.
18AAA
388.175 Regional board, powers. [M .S .A . 15 .2298(5)]
Sec. 5. Effective upon the commencement of its term of office, the regional*!
district board, subject to guidelines established by the first class district board, shall fc
the power to:
(1) Employ and discharge a superintendent for the regional school district from a!
°r lists of candidates submitted by the district board.
(2) Employ and discharge, assign and promote all teachers and other employees of!
regional school district, subject to review by the first class school district board, which
overrule, modify or affirm the action of the regional district board.
(3) Determine the curriculum, use of educational facilities and establishment of edi
tional and testing programs in the regional school district. j
(4) Determine the budget for the regional school district based upon the allocate
funds received from the first class school district board.
388.176 Employee rights. [M .S .A . 15 .2298(6)]
Sec. 6. The rights of retirement, tenure, seniority and of any other benefits of £
employee transferred to a regional school district or between regional school districts ft
the first class district shall not be abrogated, diminished or impaired.
388.177 First class district board, functions. [M .S .A . 15 .2298(7)]
Sec. 7. The first class school district board shall perform the following functions f
the regional school districts:
(1) Central purchasing.
(2) Payroll.
(3) Contract negotiations for all employees, subject to the provisions of Act No,!
of the Public Acts of 1947, as amended, being sections 423.201 to 423.216 qf the Corapi
Laws of 1948, and subject to any bargaining certification and to the provisions of e
collective bargaining agreement pertaining to affected employees.
(4) Property management and maintenance.
(5) Bonding.
(6) Special education programs.
(7) Allocation of funds for capital outlay and operations to each regional school distr
(8) On or before November 1, 1970, establish guidelines for the implementation of -
provisions of section 5.
Approved August 11, 1969.
i
19aa
bond contract. The election to assume the bonded indebtedness of an attached district
may be held at any time after 3 years following the effective date of reorganization when
a proposal is placed before the school tax electors to increase the bonded indebtedness of
the combined district.
388.218 State com m ittee on reorganization; continuation.
[M.S.A. 15 .1916(118)]
Sec. 18. The state committee on reorganization of school districts shall continue in
existence for purposes of this act. notwithstanding any expiration date otherwise provided
by law.
388.219 School em ergency loan revolving fu n d ; approval o f loan; paym ent;
appropriation. [M .S .A . 15 .191 6(11 9)]
Sec. 19. The school emergency loan revolving fund is created in the state treasury
from which emergency loans shall be made to school districts as provided in this act.
The fund shall consist of sums appropriated by the legislature plus repayments and interest
on loans. The treasurer shall transfer any amount in the fund in excess of $1,500,000.00
to the general fund. Upon approval of an application for an emergency loan by concurrent
resolution of the legislature or, when the legislature is not in session by majority vote of
the members of the special commission on appropriations created by Act No. 120 of the
Public Acts of 1937, as amended, being sections 5.1 to 5.5 of the Compiled Laws of 1948.
the state treasurer shall issue his warrant on the fund for the amount of the loan. There
is hereby appropriated from the general fund to the school emergency loan revolving fund
the sum of $1,500,000.00.
388.220 Expiration of act. [M .S .A . 1 5 .191 6(12 0)]
Sec. 20. This act shall expire June 30, 1970.
This act is ordered to take immediate effect.
Approved May 17, 1968.
ACT 245, MICH. PUB. ACTS OF 1969
AN ACT to amend Act No. 269 of the Public Acts of 1955, entitled “An act to
provide a system of public instruction and primary schools; to provide for the classifica-
tion, organization, regulation and maintenance of schools and school districts; to prescribe
Iheir rights, powers, duties and privileges; to provide for registration of school districts,
snd to prescribe powers and duties with respect thereto; to provide for and prescribe
we powers and duties of certain boards and officials; to prescribe penalties; and to repeal
certain acts and parts of acts,” as amended, being sections 340.1 to 340.984 of the Com-
Pied Laws of 1948, by adding sections 330v, 330w and 330x.
The People of the State of Michigan enact:
Sections added.
Section 1. Act No. 269 of the Public Acts of 1955, as amended, being sections 340.1
20aa
to 340.984 of the Compiled Laws of 1948, is amended by adding sections 330v, 330*8
330x to read as follows:
340.330v Interm ediate school d istrict; disorganization, procedure. [M.SJ
1 5 .3 3 0 (2 2 )]
Sec. 330v. An intermediate school district comprised of less than 5 constituent i
tricts and having no bonded indebtedness may be disorganized and its constituent stn
districts attached to contiguous intermediate school districts as provided in this and I
following sections. The board of education of each constituent school district in an ic
mediate district may request the board of education of the intermediate school district:
prescribe a plan for disorganization of the intermediate district. Each request &
prescribe another intermediate school district to which the constituent school dislii
desires to be attached. When so requested by the boards of education of all the constitnc
school districts, the board of education of the intermediate school district shall presci
by resolution a plan whereby each of the constituent school districts will be attached'!
whole to contiguous intermediate school districts prescribed in the requests but if I
desired intermediate school district would not be contiguous under the plan then the pi-
may prescribe attachment to any contiguous district. The superintendent of the i*
mediate school district which is to be disorganized shall give at least 30 days’ notice: ■
the time and place of the meeting of the board of education and of the proposed pi
for disorganization to be considered at the meeting by publication of such notice ini
newspaper of general circulation in the intermediate school district. The board si!
present the adopted plan for dissolution to the board of each of its constituent sck
districts and the board of each intermediate school district whose boundaries would!
enlarged by such proposal.
340.330w R eceiving d istrict; n otice ; approval o f p lan ; effective dais
[M .S .A . 1 5 .3 3 0 (2 3 )] f
Sec. 330w. The superintendent of each intermediate school district whose boundarirj
would be enlarged by the dissolution shall give at least 30 days’ notice of the time a»?
place of the meeting of the board of education of the intermediate school district and i>
the recommended plan for enlargement of such district which is to be considered'
the meeting by publication of such notice in a newspaper of general circulation in d
intermediate school district. When the boards of each affected intermediate school 4
trict have approved the plan for disorganization, the board of the intermediate scW
district to be dissolved shall refer the matter to the state board of education for appro'"1
The action of the state board of education declaring such district dissolved shall be f®
The disorganization of the intermediate school district and the attachment of its •
stituent school districts to contiguous intermediate school districts shall become effecti"
on July 1 next succeeding the date of the approval of the state board of education.
340.330x D istribution o f property; taxes. [M .S .A . 1 5 .3 3 0 (2 4 )]
Sec. 330x. The boards of education of the intermediate school districts to »"'■
territory is attached by such dissolution shall meet jointly, sitting as a single board, s-
make an equitable distribution of the money, property and other assets belonging to -
disorganized district among the intermediate school districts affected. The territory'
constituent school districts transferred to other intermediate school districts by the o'
organization of an intermediate school district shall be subject to all taxes levied
purposes of the intermediate school district to which transferred, including taxes for"
21aa
retirement of bonded indebtedness, special education programs and vocational education
programs.
This act is ordered to take immediate effect.
Approved August 11, 1969.
Act 48, Sec. 12, Mich. Pub. Act of 1970, provides:
388.182 Attendance provisions, implementation; condi
tions. [M.S.A. 15.2298(12)]
Sec. 12. The implementation of any attendance provi
sions for the 1970-71 school year determined by any first
class school district board shall be delayed pending the date
of commencement of functions by the first class school dis
trict boards established under the provisions of this amenda
tory act but such provision shall not impar the right of any
such board to determine and implement prior to such date
such changes in attendance provisions as are mandated by
practical necessity. In reviewing, confirming, establishing or
modifying attendance provisions the first class school district
boards established under the provisions of this amendatory
act shall have a policy of open enrollment and shall enable
students to attend a school of preference but providing prior
ity acceptance, insofar as practicable, in cases of insufficient
school capacity, to those students residing nearest the school
and those studnets desiring to attend the school for participa
tion in vocationally oriented courses or other specialized cur
riculum.
ACT 134, MICH. PUB. ACTS OF 1971
AN ACT to amend sections 1, 2, 3, 4, 5, 8a, 10, 11, 12, 13, 16a, 17,
18a, 22 and 24 of Act No. 312 of the Public Acts of 1957, entitled as
amended “An act to make appropriations for the purpose of aiding the
public schools, the intermediate school districts and the secular education
0 children enrolled in nonpublic schools; to provide for the disbursement
0 the appropriations; and to supplement the school aid fund by the levy
aud collection of certain excise taxes,” as amended and added by Act
22aa
No. 2S5 of the Public Acts of 1964, Act No. 22 of the Public Acts of 11,
Act No. 21 of the Public Acts of 1968 and Acts No. 100 and 252 of tit
Public Acts of 1970, being sections 388.611, 3SS.612, 3SS.613 38S 6h, ■
388.615, 388.618a, 388.620, 3SS.621, 38S.622, 3SS.623, 388.626a’ 3SS£.
388.628a, 388.632 and 388.634 of the Compiled Laws of 194S; to ad]
section 9; and to repeal certain acts and parts of acts.
The People of the State of Michigan enact:
Sections amended and added.
Section 1. Sections 1, 2, 3, 4, 5, 8a, 10, 11, 12, 13, 16a, 17, ISa, 2i
and 24 of Act No. 312 of the Public Acts of 1957, as amended and added
by Act No. 285 of the Public Acts of 1964, Act No. 21 of the Public
Acts of 1968, Act No. 22 of the Public Acts of 1969 and Acts No. Id
and 252 of the Public Acts of 1970, being sections 38S.611, 3SS.612,
388.613, 388.614, 388.615, 388.618a, 388.620, 388.621, 3SS.622, 3SS.623,
388.626a, 388.627, 388.628a, 388.632 and 3SS.634 of the Compiled Laws
of 1948, are amended and section 9 is added to read as follows:
388.611 School aid appropriation; deficiency, contingency account.
[M.S.A. 15.1919(51)] ‘
Sec. 1. There is hereby appropriated from the school aid fund estab
lished by section 11 of article 9 of the constitution of the state for the
fiscal year ending June 30, 1965, and for each fiscal year thereafter, the
sum necessary to fulfill the requirements of this act, with any deficiency
to be appropriated from the general fund by the legislature. The budget
director shall reduce or adjust allotments in an amount equal to .75 mills
of the state equalized valuation of each local school district or 20« of
the basic membership aid due the district, whichever is the lesser, for
the purpose of creating a general contingency account which shall be
used to meet deficiencies in estimated revenues which shall include any
prior year deficit or for reasons of administrative efficiency, including those
determined by appointing authorities under section 5 of article 11 oil
the state constitution. A statement reflecting all reductions of adjustments!
in allotments made under the authority of this section shall be detailed
and forwarded to the education and appropriations committees before
March 1, 1972. Any residue remaining in the contingency account at that
time, upon recommendation of the superintendent of public instruction
and approval by concurrent resolution of the legislature adopted by a,
majority of the members serving in each house with record roll call vote
may be allotted in subsequent payments made under section 25 of this act-
388.612 Intermediate districts. [M.S.A. 15.1919(52)]
Sec. 2. From the total amount appropriated in section 1 there is aP'
propriated to intermediate school districts as established under sections
291a to 32Sa of the school code of 1955, the sum necessary but not to
exceed $5,500,000.00 to provide state aid to such districts under the p10'
visions of section 16a.
23 aa
388,613 Compensatory education programs; allocations, evaluation; per
formance contracts, rules. [M.S.A. 15.1919(53)]
Sec. 3. (1) From the amount appropriated in section 1, there is
appropriated $23,000,000.00 to enable eligible school districts to establish
or to continue, in conjunction with whatever federal funds may be avail
able to them from the provisions of title I of Public Law 89-10 (Elemen
tary and secondary education act) but not to exceed $200.00 of state
funds per eligible pupil participating in such programs, comprehensive
compensatory education programs designed to improve the achievement
in basic cognit.' :e skills of pupils enrolled in grades K-6 who have extra
ordinary need for special assistance to improve their competencies in
such basic skills and for whom the districts are not already receiving
additional funds by virtue of their being physically, mentally or emo
tionally handicapped.
(2) School districts shall be eligible for allocations from this section,
for the fiscal year 1971-72 and for each of the following 2 fiscal years
if at least 15% of their total enrollment in grades K-6 and not less than
30 of their pupils in grades K-6, as described in subsection (1) and as
computed in subdivision (d) of subsection (3), are found to . be in need
of substantial improvement in their basic cognitive skills except school
districts that received aid under this section in 1970-71 for schools housing
grades 7 and 8 shall be funded, if the pupils in those schools are found
eligible, in a manner to be determined by the department of education.
(3) The number of pupils in grades K-6 construed to be in need of
substantial improvement in their basic cognitive skills shall be calculated
for each school district by the following procedural steps:
(a) Using the composite achievement test score only on the state
assessment battery given in January 1971, a percentile ranking shall be
made statewide for the scores of pupils in grade 4 and for the scores of
pupils enrolled in grade 7.
(b) The percent of pupils of the district enrolled in grade 4, as
defined in subsection (1), who scored at the fifteenth percentile or lower
for grade 4 in accordance with statewide norms established for the assess
ment battery, shall be determined and this percentage shall be multiplied
by the aggregate enrollment of the district in grades K-4 on the fourth
Friday following Labor day of the preceding school year.
(c) The percent of pupils of the district enrolled in grade 7, as
defined in subsection (1), who scored at the fifteenth percentile or lower
for grade 7, in accordance with statewide norms established for the assess
ment battery, shall be determined and this percentage shall be multiplied
by the aggregate enrollment of the district in grades 5 and 6 on the fourth
*iday following Labor day of the preceding school year.
(d) The number of pupils determined in subdivision (b) shall be
a cled to the number of pupils determined in subdivision (c) and this
■esultant sum shall be construed to be the number of pupils of the district,
24aa
enrolled in grades K-6 , who are in need of substantial improvement in
their basic cognitive skills at the beginning of the 1971-72 school year.
(4) The tentative allocations to each eligible district shall be deter
mined by multiplying the number of pupils determined in subdivision (d)
of subsection (3), by $200.00.
(5) The tentative allocations as determined in subsection (4) shall
be distributed the first year to districts in decreasing order of concen
trations of pupils in grades K-6 , who score on the assessment battery a:
the fifteenth percentile or lower for norms for the state as a whole. Dis
tribution shall begin with the district with highest concentration of such
pupils and continue in descending order of concentration until all of the
monevs appropriated under subsection ( 1 ) have been distributed, if;
(a) The districts have applied for the moneys on forms provided
by the department of education in accordance with rules promulgated
by the state board of education.
(b) The districts have shown evidence of having established “com
parability” among the schools within their boundaries in accordance with
standards established by the state board of education.
(c) The districts have committed themselves, in a manner accept
able to the state board of education, to the involvement of parents, teach
ers and administrators in the planning and continuous evaluation of their
compensatory education programs as conducted under this section.
(d) The districts have identified the performance objectives of their
compensatory education programs. Performance objectives shall be con
cerned primarily with the improvement of pupils’ performance in the basic)
cognitive skills.
(e) The districts have certified that they will identify or have identi
fied, on or before the fourth Friday following Labor day of the school year,;
the pupils to be provided special assistance with these moneys with tire pu
pils being selected in grades 2 - 6 from the lowest achievers in basic cognitive
skills and in grades K-l from among those with the lowest readiness for
the acquisition of cognitive skills. The aggregate number of pupil*
selected from grades K-4 and from grades 5 and 6 shall bear at least the
same ratio to the total enrollment in these blocs of grades as those per
centages which were used for the districts in subdivisions (b) and (c)
of subsection (3).
( 6 ) A district receiving moneys under this section may use these
moneys in any manner which, in the judgment of its board of education
and its staff, will contribute significantly toward substantial improvements
in the basic cognitive skills of the pupils. These uses may include, but are:
not limited to, the following:
(a) Employment of additional personnel.
(b) Purchase of instructional devices and other aides.
(c) Leasing of portable classrooms.
(d) Contracting with a public or private agency, a group of eDi
ployees or a group of nonemployees.
25 aa
(e) Providing inservice training for teachers and other personnel.
(f) Provision of adequate nutrition and health care to students.
(7) As a condition of receiving moneys for use in fiscal years follow
ing 1971-72, an assessment or evaluation of the progress of each pupil
construed to be in need of special assistance under the section shall be
made with the use of pretests and posttests. These tests shall be admin
istered or approved for administration by the department of education in
accordance with policies of the state board of education to determine the
amount of progress made by the pupils toward attainment or the per
formance objective specified in the district s approved application as
stipulated in subdivision (d) of subsection (5). For each pupil making
a minimum gain during the year of at least 75% of the skills in the per
formance objectives specified for his program, the district shall receive
the full per pupil amount of section 3 funds allocated to the district in
accordance with subsection (4). For those pupils who do not achieve
at least 7 5 % gain, the district shall receive in the subsequent year an amount
per pupil prorated in the proportion that the amount of actual gain made
bears to 7 5 % of the total skills listed for the programs provided these pupils.
Regardless of gain levels, a district shall be paid in full for a pupil who
has migrated from the district during the school year and for a pupil
who has not attended school for a minimum period of 150 days because
of health reasons verified by a medical authority.
(8 ) Not more than 0.5% of a school’s total allocation under this
section shall be deducted and retained by the department of education for
administration and evaluation of the programs conducted under this
section. The state board of education shall report to the governor and
the legislature not later than October 1 of each year the results of the
evaluation studies including a report on exemplary programs which promote
academic achievement.
(9) The superintendent of public instruction may disallow deduc
tions from state aid payments due to the inability of a school district to
verify eligibility under this section for the school years 1968-69 and
1969-70.
(10) From the amount appropriated under this section, $500,000.00
shall be used for grants to school districts to enter into performance con
tracts for instructional purposes. The definition of what constitutes such
programs shall be in accordance with rules promulgated by the state
board of education. The department of education shall establish and
supervise the contracts.
(H) The state board of education shall promulgate rules necessary
to implement this act in accordance with and subject to Act No. 306 of
the Public Acts of 1969, as amended, being sections 24.201 to 24.315 of the
Compiled Laws of 1948.
388.614 Conceptually oriented mathematics program, evaluation, report.
[M.S.A. 15.1919(54)]
26aa
Sec. 4. From the amount appropriated in section 1 there is appropriate
to the department of education the sum of $250,000.00 to continue cc;
tractual arrangements for the statewide program of abstract conceptual!
oriented mathematics utilizing the discovery method to improve the bast
skills of educationally needy children attending elementary schools, h
department of education shall evaluate the effectiveness of the prograi
and submit its findings to the legislature by March 1 , 1972.
38S.615 Vocational education program, rules, application. [M.S.A
15.1919(55)]
Sec. 5. From the total amount appropriated in section 1 there is if
propriated the sum of $3,000,000.00 to reimburse school districts and an
vocational centers for vocational education programs on an added cost basil
The definition of what constitutes such programs and reimbursement sU
be in accordance with rules promulgated by the state departments:
education. Applications for participation in such programs shall be fid
in the form prescribed by the department of education.
388.618a Basic allotment; formula; 1971-72. [M.S.A. 15.1919(58a)]
Sec. 8 a. (1 ) To every district in the state, except as otherwis
provided in this act, there shall be appropriated where required to men
the provisions of this act, a sum determined as provided in subsection §]
plus the amount allocated for tuition and transportation. No schocl
district shall receive a smaller net allowance per membership pupil (d
1971-72 than was received by the district in 1970-71 after reductions n;i
by executive order except that no more than $1 0 ,0 0 0 ,0 0 0 . 0 0 shall be dis
tributed under this provision. The apportionment of the school aid fnnl
to the several school districts shall be governed and limited by the provisions
of section 35. Whenever 2 or more districts are reorganized into a single
district, either through a procedure of annexation or consolidation, tie
amount of state aid to be received by such new district during the 2 years
immediately subsequent to the annexation or consolidation shall not be less
than the total sum of state aid which was earned by all of the districts
forming the new district during the last fiscal year in which the districts
received aid as separate districts.
(2) The sum allocated to each school district shall be computed fro®
the following table:
State equalized valuation Gross Deductible'
behind each child Allowance Millage
(a) $17,000.00 $559.50 14 ;
or more
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3SS.619 Retirement boards, estimated aggregate compensation, waiver;
allocation, retirement allowances. [M.S.A. 15.1919(59)]
Sec. 9. The provisions of Act No. 136 of the Public Acts of 1945, as
amended, being sections 38.201 to 38.357 of the Compiled Laws of 1948,
requiring certification by the retirement boards of estimated aggregate
compensations of school employees for the ensuing year are waived. The
appropriations contained herein for such purposes shall be allocated by the
budget director to the retirement systems quarterly pursuant to their
certification of actual compensation received by school employees. The
employer contribution for current service and social security on aggregate
salaries paid from federal funds to members of the Detroit and Michigan
public school employees’ retirement systems shall not be paid from the
state’s school aid fund but shall be paid from any federal or state funds
otherwise payable to the school district.
Notwithstanding any other act to the contrary, in no case shall the
annual retirement allowance payable to a retirant or beneficiary in chapter
1 or 2 who retired any time before July 1, 1956 be less than $2,400.00:
Provided, That a person serving less than 30 years but not less than 15
years shall be entitled to a retirement allowance of not less than an amount
which bears the same ratio to $2,400.00 as the total years of service of said
person bears to 30 years.
Pursuant to the provisions of section 27 of chapter 1 and section 45
of chapter 2 of Act No. 136 of the Public Acts of 1945, as amended, there
is appropriated ror the:
MICHIGAN PUBLIC SCHOOL EMPLOYEES’ RETIREMENT SYSTEM
(b) Less than $17,000.00 $661.50 20
For chapter 1 retirees ...................................................... $ 1,940,000.00
For current obligation ...................................................... 154,284,000.00
For unfunded accrued liability ...................................... 10,000,000.00
Subtotal .......................................................................... $166,224,000.00
DETROIT PUBLIC SCHOOL EMPLOYEES’ RETIREMENT SYSTEM
For chapter II retirees ...................................................... $ 760,000.00
For current obligation ..................................................... 27,616,000.00
For unfunded accrued liability ..................................... 14,500,000.00
Subtotal ........................................................................... $ 42,876,000.00
Total .................................................................................. $209,100,000.00
388.620 Tuition allotments; special programs; limitations. [M.S.A.
15.1919(60)]
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Sec. 10. (a) Any district not maintaining school within the district
may participate in the school aid fund under this subsection. The total
amount which shall be apportioned to any such district shall be the sum
which such district shall be apportioned under other sections of this act
less the amount that would be obtained by multiplying the valuation of
the property within the district by 5.86 mills.
(c) Any district paying tuition for pupils being educated under the
provisions of sections 771, 772, 773, 774, 778, 779 and 780 of the school,
code of 1955 shall be allowed an amount sufficient to pay the tuition charged
the district in excess of $50.00 per pupil but less than $81.00 per pupil and
all over $150.00 per pupil plus any sums which such district shall !;e
apportioned under other sections of the act.
(d ) Any district paying tuition for pupils being educated under
the provisions of sections 775 to 778 of the school code of 1955 shall It
allowed an amount sufficient to pay the tuition charged the district in
excess of $50.00 per pupil but less than $81.00 per pupil and all ova
$150.00 per pupil of the minimum rate which must be charged in ac
cordance with subsection (c) of section 13, plus any sums which such district
shall be apportioned under other sections of this act.
(e) Any district operating summer school programs for the physical)'
handicapped and/or speech defectives, emotionally disturbed and mentally
handicapped as approved by the superintendent of public instruction shall
be allowed up to 75% of the actual cost of the programs as determined by
the superintendent of public instruction.
(f) Any district having American Indian children in attendance, who
reside within the district and upon a United States government Indian l
reservation, shall be allowed in addition to the allowances provided by thej
other sections of this act an amount equal to the number of such children
in attendance times 1/2 the tuition rate as computed in accordance with'
sections 13a and 14 and in accordance with section 582 of the school
code of 1955. No district receiving federal assistance under Public Lw
874, 81st Congress, as amended, shall share in the provisions of this sub
section.
388.621 Transportation of pupils; review of orders. [M .S .A . 15.1919(61)]
Sec. 11. (a) Additional allotments for transportation of school chil
dren shall be made to districts in which school is not maintained in par-
according to law and to districts which were organized as township and
rural agricultural school districts or fractional districts prior to July 1,1®
and to primary or fourth class school districts transporting eighth grade -
graduates to high schools in other districts, transporting school children,
living within the district but living outside the village or city limits a®
more than 1-1/2 miles from the school they attend, or living within tbs
corporate limits of a municipality when the area in which the children as®
living is a fraction of the municipality and the major portion of sucb >
municipality is contained in another single school district, and no school
29 aa
is operated in the fraction of the municipality where the children can
attend and where the children live more than 1-1/2 miles from the school
they attend, and to fourth class school districts which do not contain
within their boundaries a city or village and which transport resident
school children living more than 1-1/2 miles from the school they attend,
and to any school district containing 2 or more incorporated municipalities,
or parts of 2 or more municipalities, operating 1 high school and 1 junior
high school, or 1 combination junior-senior high school, for the transporta
tion of those children enrolled in grades 7 through 12 who are resident in
one of the municipalities and who live more than 1-1/2 miles from the school
which they attend, when the school building in which those grades are
taught is situated outside the corporate limits of the municipality in which
the child resides, from the school aid fund in amounts determined by the
superintendent of public instruction, but not to exceed 75% of the actual
cost of transporting children to and from school. Allotments for transporta
tion shall be made to school districts for children living within the city or
village limits within the district boundaries and more than 1-1/2 miles from
the school they attend by the nearest traveled public highway when such
highway is routed outside of the city or village limits, before reaching
the school the children attend. Transportation distances shall be measured
along public streets and highways. The. superintendent of public instruc
tion shall have authority upon investigation by him, or someone designated
by him, to review, confirm, set aside or amend the action, order or decision
of the board of education or school board of any school district with
reference to the routes over which school children shall be transported, a
distance they shall be required to walk, and the suitability and number of
vehicles and equipment for the transportation of the school children.
No allotment for transportation shall be allowed any school district
which operates a bus route disapproved by the superintendent of public
instruction.
District not maintaining school.
(b) Any school district not maintaining school within the district
may participate in the school aid fund under this subsection. The total
amount which shall be apportioned to any such district shall be an amount
determined by the superintendent of public instruction but not to exceed
y® 0!" actual cost of transportation, less a sum equal to 5.86 mills on
the valuation of the property within the district reported and determined
as hereinafter provided. If the amounts deducted herein have been used to
etermine the aid to any such district under any other section of this act,
the amount herein allotted for transportation shall be in addition to such
other amounts allotted.
Mentally handicapped; waiver of restriction.
ic) Any school district providing transportation for mentally handi-
77S r ,c^ ^ ren being educated under the provisions of sections 775 to
of the school code of 1955 shall be allowed an amount determined by
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the superintendent of public instruction but not to exceed 752 of tb
actual cost of transportation or more than $200.00 per pupil living more
than 1-1/2 miles from the school they attend unless the superintendent of
public instruction determines from the best evidence available that the
pupil cannot safely walk that distance in which case the limit of 1-1/2
miles may be waived. No allowance for such pupils shall be given under
subsections (a) and (b).
Physically handicapped; state schools for deaf, blind.
(d) Any school district providing transportation for physically handi
capped children being educated under the provisions of sections 771 to
774 of the school code of 1555, or any school district providing daily trans
portation for children being educated at the Michigan school for the deaf
or at the Michigan school for the blind and who cannot safely walk to the
school they attend shall be allowed an amount determined by the superin
tendent of public instruction but not to exceed 75% of the actual cost of
transportation or more than $200.00 for each pupil transported. No allow
ance for such pupils shall be given under subsections (a) and (b).
Emotionally disturbed.
(e) Any school district providing transportation for emotionally dis
turbed children being educated under section 775a of the school code of
1955, as amended, shall be allowed an amount determined by tire superin
tendent of public instruction but not to exceed 75% of actual cost of trans
portation or more than $200.00 per pupil living more than 1-1/2 miles from
the school they attend. No allowance for such pupils shall be given under
subsections (a) and (b).
Facilities of department of mental health.
(f) Any school district providing daily transportation for children
being educated or being provided day care services at facilities under the
direction of the department of mental health shall be allowed an amount
determined by the superintendent of public instruction but not to exceed
752 of the actual cost of transportation or more than $200.00 for each
pupil transported. No allowance for such pupils shall be given under
subsections (a) and (b).
Board, room allowance for mentally or physically handicapped.
(g) Any school district providing board and room for children being
educated under sections 771 to 780 of the school code of 1955 shall be
allowed an amount sufficient to pay the board and room up to an amount
approved by the superintendent of public instmetion.
Vocational centers; secondary school pupils.
(h| Any school district providing transportation for secondary school
pupils to centers designated and approved as secondary area vocational
centers by the department o f education shall be allowed an amount
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determined by the department of education but not to exceed 75% of the
actual current year cost of such transportation. Not more than $1,000,000.00
shall be distributed for transportation under this subsection.
Maximum amount distributed.
(i) Not more than $32,600,000.00 shall be distributed for transporta
tion.
388.622 Definitions; pupils. [M.S.A. 15.1919(62)]
Sec. 12. (a) As used in this act a “pupil” is defined as a child in
membership in a public school, and school children are defined as children
in membership in any school.
All pupils to be counted in membership shall be enrolled in accordance
with sections 357 and 731 of the school code of 1955 except that all pupils
regularly enrolled and working toward a high school diploma may be
counted in membership regardless of age. Any former member of the
armed services in attendance in the public schools, the cost of whose instruc
tion is not paid for by other state funds or by the federal government,
shall be counted in membership regardless of age. Handicapped children
enrolled under the provisions of sections 771 to 780 of the school code of
1955 may be counted in membership for the ages provided in those sections.
“Elementary pupils” are defined as pupils in school membership in
grades from the kindergarten to the eighth grade in districts not maintain
ing classes above the eighth grade and in grades from the kindergarten to
the sixth grade in districts maintaining classes above the eighth grade.
“High school pupils” are defined as pupils in school membership in
grades 7 to 12 except in districts, not maintaining grades above the eighth.
Membership, defined; computation; uniform interpretation.
(b) “Membership” as used in this act shall be construed as registra
tion plus receipts by transfer, plus returns, minus losses, as defined by the
superintendent of public instruction in the Michigan child accounting
system.
‘Full-time membership” shall be construed as all membership in kinder
garten to twelfth grade for those actually enrolled in regular daily attend
ance on the fourth Friday following Labor day of each year. The
superintendent of public instruction shall give a uniform interpretation of
such full-time memberships.
No pupils enrolled in school programs organized under federal or state
supervision and in which the teaching costs are fully subsidized from
federal or state funds shall be eligible to be counted in membership.
Any child under court jurisdiction who is placed in a private home or
in a private or public institution located outside the school district in which
ms parents or legal guardians reside may be counted as a resident of the
school district he attends if other than the district of his parents or legal
guardian and shall be counted as 1-1/2 memberships.
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The total membership of such children shall be computed by adding
the membership days attended by all such children up to April 1 of tlie
current school year and dividing the total by the number of days in the
school year of the district up to April 1 of the current school year. It
mem’ -ership thus obtained shall be certified by the district to the superin
tendent of public instruction who shall adjust the total membership of the
district accordingly in determining the school aid to be paid during the
current fiscal year.
Any child whose parents or guardians live on land in this state over
which the federal government has taken exclusive jurisdiction and which
has not been attached to a school district for educational purposes may be
included in membership by the school district which he attends and for
the purpose of this act be considered a tuition pupil. Notwithstanding any
other provision of this act, a school district providing kindergarten to
twelfth grade educational services for department of corrections pupils or
contracting with the department of corrections for such educational serv
ices may count such pupils in membership and receive state aid under ;
this act.
The superintendent of public instruction shall give a uniform interpreta-
bon and evaluation or memberships other than full-time memberships.
Hearing impaired, physically or visually handicapped.
(c) School districts conducting programs for the hearing impaired,
physically .handicapped and visually handicapped shall be allocated an
additional amount not to exceed 75% of the cost for equipment, for teachers
who teach others to transcribe books into braille or books for visually
handicapped students at all levels and for expenses incurred in transcribing
and recording educational materials, including machines, paper and
binding.
Intermediate school districts, trainable programs.
(d) Each intermediate school district shall be entitled to additional
funds from the total amount appropriated in section 1 for the purpose of
establishing programs for trainable individuals up to the age of 21 who
are not currently eligible for mentally handicapped programs type A or B.
The amount appropriated for these programs shall not exceed 75% of the
actual cost of operating the program including the cost of transportation,
Each intermediate school district is authorized to use moneys in its general
fund or special education fund not otherwise restricted or contributions
from local school districts or individuals for the support of such programs.
Special education; limitations.
( e , The amounts appropriated herein for special programs under
the provisions of sections 771 to 780a and 307a to 324a of the school code
of 1955, and for school social workers, school diagnosticians, physical
therapists, occupational therapists, and other professionals, shall not exceed
75% of the actual cost of salaries, exclusive of administrative and clerical
salaries, not to exceed $8,100.00 for any individual salary for such programs
33aa
as determined by the superintendent of public instruction. The salaries of
directors and supervisors of special education programs whose full-time
activities are devoted solely to special education programs shall be
reimbursed under the provisions of this subsection. From the total amount
appropriated in section 1 there is appropriated a sum not to exceed
$55,000,000.00 for special education programs.
Remedial reading programs.
(f) School districts offering remedial reading programs approved by
the superintendent of public instruction shall be entitled to 75% of the
actual cost of the salary, not to exceed $8,100.00 for any individual salary,
of each remedial reading teacher approved by the superintendent of public
instruction. The superintendent of public instruction may provide by rules
for the maximum number of pupils per teacher to be counted. From the
total amount appropriated in section 1 there is appropriated a sum not to
exceed $3,400,000.00 for remedial reading programs to be used for teachers’
salaries at the 4 to 12 grade levels only. A school district funded under
section 3 shall not receive funds under this subsection for any remedial
reading program except when the allocation under section 3 is less than
the sum of the district’s 1970-71 allocations under section 3 and for
remedial reading in which case a district employing at least the same
number of remedial reading teachers as it employed in 1970-71 shall
receive remedial reading funds in an amount equal to the 1970-71 remedial
reading allocation or an amount sufficient to make the combination of
section 3 and remedial reading funds for 1971-72 equal to the 1970-71
combination, whichever is less. A school district not eligible for funds
under section 3 shall receive under this subsection for 1971-72 an
amount equal to the remedial reading funds received for 1970-71 if it
continues to employ at least the same number of remedial reading teachers.
If the number of remedial reading teachers employed in 1971-72 is less
than the number employed in 1970-71 a proportionate reduction shall
be made in the funds for the district.
Programs for pregnant persons; teachers’ salaries.
(g) From the amount appropriated in section 1, there is appropriated
a sum n°t to exceed $300,000.00 to be used for the salaries of teachers
alternative education programs for pregnant persons as approved by
the superintendent of public instruction in accordance with Act No. 242
of die Public Acts of 1970, being sections 388.391 to 388.394 of the
ompiled Laws of 1948. Local school districts and intermediate school
istricts providing approved programs shall be entitled to 75% of the
actual cost of the salary, not to exceed $8,100.00 for any individual salary,
0 each teacher approved by the superintendent of public instruction.
Definitions; elementary tuition pupil. [M.S.A. 15.1919(63)]
Sec. 13. (a) An “elementary tuition pupil” is a child of school age
ending school in grades kindergarten to sixth in a district other than
Is residence and whose tuition is paid by the school board of the
34aa
cistri.l of his residence. If the district in which such child is in attendance
does net operate grades above the eighth, elementary tuition pupils shall
also include pupils enrolled in the seventh and eighth grades.
High school tuition pupil.
(b ) A “high school tuition pupil” is a child of school age attending
school in grades seventh and eighth in a district other than that of his
residence and in which grades above the eighth are being maintained, and
in grades ninth to twelfth in a district other than that of his residence and
whose tuition is paid by the school board of the district of his residence.
Date and formula for charging tuition.
O O
(c) Every school district having tuition pupils enrolled on the fourth
Friday following Labor day of each year, shall charge the school district,
in which such tuition pupil resides, tuition in at least the amount of the
differences between the per capita cost as determined in section 14 and
the per pupil membership allowance provided in sections 8 and 10. Except
that in the case of nonresident pupils in part-time membership, an addi
tional allowance for such child shall be made to the school district in an
amount equal to the difference between the prorated per capita cost as
determined in section 14 and the prorated per pupil membership allowance
as provided in sections 8 and 10.
Attendance by direction of probate court, tuition.
(d) Notwithstanding the provisions of subsections (a), (b) and (c),
a child residing in a juvenile or detention home operated by a probate
court and attending school by direction of the court in the school district
of residence of his parent or legal guardian shall not be counted as a
tuition student but shall be counted in resident membership in that school
district. A child residing in the home of his parent or legal guardian but
who, by assignment of a probate court, attends school in another school
district, which school is operated for j'uveniles under court jurisdiction,
shall not '\c counted as a tuition student but shall be counted in resident
membership in the school operated for juveniles; and a child residing
in the home of his parents or legal guardian or juvenile home but who, by
direction of local school authorities and approval of the probate court,
may be enrolled in school in another school district shall not be counted
as a tuition student but shall be counted in resident membership.
vdiilu placed in state institution by parents.
( e ) Any child placed in a state institution by parents shall be counted
in resident membership of tire school district in which the child is en
rolled, and an additional allowance for such child shall be made to the
school district in the amount equal to the difference between the per capita
cost as determined in section 14 and the per pupil membership allowance
as provided in sections 8 and 10.
35aa
388.626a Intermediate districts; apportionment of aid, data processing,
educational media centers. [M.S.A. I5.1919(66a)]
Sec. 16a. (1) There shall be apportioned to each intermediate school
district an amount equal to the operating budget of the district multiplied by
the percentage that the total state aid received by all of the constituent
districts of the intermediate district under the provisions of the state
school aid act in effect during the preceding school year was of the total
current operating expenditures of all the constituent districts of the
preceding year, except that no intermediate district shall receive aid on
a basis of less than 50% of its approved budget.
(2) The operating budget of the intermediate unit shall be the budget
finally adopted by the board of education in accordance with all constitu
tional and statutory hearings and after the allocation of millage has been
made by the county tax allocation board. The budget total shall be reduced
by the amounts allocated for building and site expenditures, cooperative
educational programs, and any program not approved by the superintendent
of public instruction.
(3) The current operating expenditures of the constituent districts
shall be in accordance with the classification of expenditures used in
reporting receipts, expenditures and other financial data to the superin
tendent of public instruction.
(4) Intermediate districts formed by the consolidation of 2 or more
county or intermediate school districts shall be entitled to an additional
allotment of $3,500.00 for each county included in the new district for a
period of 3 years following consolidation.
[(5) From the amount appropriated in section 1 there is appropriated
a separate fund of $400,000.00 for the purpose of providing funds to
intermediate districts which operate data processing programs, using a
service fee method of financing on a cooperative basis with local school
districts as approved by the superintendent of public instruction. Inter
mediate school districts shall apply for and receive funds in accordance
with rules promulgated by the state board of education.
(6) From the amount appropriated in section 1 there is appropriated a
separate fund of $100,000.00 for the purpose of providing funds to inter
mediate districts which operate educational media centers in accordance
with sections 291b to 291d of the school code of 1955, and the criteria
established by the state board of education and the superintendent of
public instruction.] °
3S8.627 Valuation of districts; reductions. [M.S.A. 15.1919(67)]
Sec. 17. Tire valuation of any whole district shall be the total assessed
value of the property contained therein as fixed by the local assessing
oiricer or officers, township or city board of review, which in turn shall
e Proportionately increased or decreased to the basis of the valuation of
1 je township or city containing said district, as fixed by the county board
0 equalization, and the result in turn proportionately increased or decreased
36aa
to the basis of the valuation of die county containing said district as last
fixed by the state board of equalization.
f ne valuation of a fractional school district shall be the sum of the
valuations of the fractions thereof, eacli of which shall be computed in
the same manner as a whole school district.
The valuations of property assessed under the provisions of Act No.
1S9 of the Public Acts of 1953, as amended, being sections 211.181 and
211.182 of the Compiled Laws of 1948, shall be deducted from the total
valuation of a district in cases where school taxes levied against such
property are not collected from the lessee or user of the property. The
credit so obtained by a district in the application of the formula provided
in section 8a shall forever be a lien against the district and shall be paid
by the district to the school aid fund at such time only as the taxes referred
to above are collected.
The valuation of property located on land over which the federal
government has exclusive jurisdiction and upon which school taxes have
been levied in accordance with federal law shall be deducted from the
total valuation of a district if credits against such taxes, as permitted by
federal law, result in a payment to the district of an amount less than the
product of the valuation of such property, times the millage referred to
in section 8a. Any amount of such taxes collected shall be deducted from
the school aid to which the district is entitled under sections 8a, et seq,
up to an amount equal to the above product.
Whenever taxes levied for operating purposes against property con
stituting at least 10* of the valuation of a district are paid under protest
and are thus unavailable to the district, the total valuation of the district
for the purposes of this act shall be reduced by the valuation of such
property. The credits so obtained by a district in the application of the
formula provided in section 8a shall forever be a lien against the district
and shall be pair1 by the district to the school aid fund at such time only
as the taxes referred to above are collected.
The valuation of any district shall be reduced under the following
conditions and in the following manner:
(a) An application may be filed by the school district in form and
content as described by the superintendent of public instruction showing the
total taxes levied on property located within the school district by ad
taxing agencies including the school district but excluding taxes levied
for school operating purposes.
(b) Using the total taxes as last reported by the state tax commission
"The bracketed items were vetoed by the governor. The veto message appears at the end of the
Public Acts, post. — Editor.
37aa
for die entire state but excluding taxes levied for school operating pur
poses, the superintendent of public instruction shall determine the tax
rate for the entire state. He shall determine the tax rate for the applicant
school district by dividing tire figure obtained in subdivision (a) by tne
district valuation.
(|| If the resulting tax rate for the applicant school district is 125"
or more of the resulting tax rate for the school districts of the state, the
valuation of the applicant school district shall be reduced by the percent
by which the resulting tax rates on property located within the applicant
school district exceeds 1253 of the resulting tax rates on property located
in all school districts of the state. Any district qualifying for state aid
under 1 of the formulas provided in subsection (2) of section 8a shall
not qualify for state aid under a different formula in that subsection solely
as a result of the reduction in valuation under the provisions of this
section. Not more than $20,000,000.00 shall be paid as the result of reduc
tion of valuation under this section. A district receiving a membership
guarantee under section 8a shall not receive assistance under this section
unless tiie allowance under this section is greater than the membership
guarantee under section 8a. A district shall not receive both a member
ship guarantee under section Sa and assistance under this section.
388.628a Emergency reorganization of districts; additional allotments;
limitations. [M.S.A. 15.1919(6Sb)]
Sec. 18a. (1) Whenever a school district, in whole or in part, was
attached to another district prior to January 1, 1969, as authorized by Act
No. 239 of the Public Acts of 1967, as amended, being sections 388.711
to 38S.720a of the Compiled Laws of 1948, the amount of state aid to be
paid in the year 1971-72 to the district to which territory was attached
shall be increased by $200.00 per pupil added as a result of such attach
ment in the year 1968-69 for the purpose of bringing about uniformity of
educational opportunity for all the pupils of the district. The number of
student residents of the attached areas and counted as resident students
on September 27, 1968 shall serve as the basis for the payment of these
funds.
(2) School districts receiving students under the provisions of Act
No. 239 of the Public Acts of 1967, as amended, and divided and attached
between January 1, 1969 and July 1, 1969, shall be granted the sum of
$150.00 per student resident of the area received as a direct result of the
attachment. This money is to be deposited in the general fund account of
the districts receiving the students and used for the purposes of bringing
about uniformity of educational opportunity for all the pupils of the enlarged
school district. The number of students each school district receives under
the provisions of Act No. 239 of the Public Acts of 1967, as amended, shall
Je determined by a membership count as made by the state department of
education on September 26, 1969. A report of the membership audit shall
00 sent to the state treasurer who shall pay the required amounts from
38aa
the school a; j fund prior to December 31, 1971. Not more than $600,000.00
is appropriated for the purposes of this subsection.
(3) Any funds owed to the attached school district including but not
limited to any overpayment of bills paid by the attached district, delinquent
property taxes for operating purposes, reimbursement due the attached
school district from the state for transportation and tuition or any funds
due tire district from federal or other state sources, or gifts received by
or in behalf of the attached school district shall be placed in the school
aid fund.
38S.632 Apportionments; basic dates; full year school; special education,
[M.S.A. 15.1919(72)]
Sec 22. The apportionments, and limitations thereof, made under
this act shall be made on the membership and number of teachers employed
as of the fourth Friday following Labor day of each year, on the number
of pupils for whom transportation is allowed for tire preceding school
year, elementary or high school tuition payments for the current fiscal
year, per capita cost of pupils for the preceding year, and on the state
equalized valuation of each school district for tire calendar year. In addi
tion, those districts maintaining school during tire entire year, as provided
under section 731 of the school code of 1955, shall count memberships
and teachers in accordance with rules established by the state board o(
education. The membership in the programs for the physically and mentally
handicapped and the number of instructors and teachers in speech correc
tion, visiting teacher programs and professional employees other than
classroom teachers approved by the superintendent of public instruction as
necessary to carry on approved programs under the provisions of sections
771 to 780 of the school code of 1955 shall be counted as of the fourth
Friday following Labor day.
388.634 Apportionment, time; certification of trailer coach fees. [M.S.A.
15.1919(74)]
[Sec. 24. The superintendent of public instruction shall, on or before
March 15 of each fiscal year, make the apportionment among the public
school districts of the state as required in sections 8 et seq. Before March 1
of each year, each school district shall certify to tire superintendent of
public instruction the amount of revenue received for school operating
purposes during the previous calendar year as a result of Act No. 243 of
the Public Acts of 1959, as amended, being sections 125.1G01 to 125.109.
of the Compiled Laws of 1948.]°
Sections repealed.
Section 2. Sections 8b, 14a and chapter 2 of Act No. 312 of the Public
Acts of 1957, as amended and added, being sections 388.618b, 388.624a and
388.655 to 388.666a of the Compiled Laws of 1948, are repealed.
This act is ordered to take immediate effect.
Approved September 29, .1971.
39aa
ACT 225, MICH. PUB. ACTS OF 1972
AN ACT to provide for emergency financial assistance for insolvent school
districts; to prescribe certain powers and duties of the intermediate board o.
education in connection therewith; to provide a procedure for reorganization
of such school districts; to provide for continuance of the state committee on
reorganization of school districts; to provide certain powers and duties of the
state board of education in connection therewith; to create an emergency loan
revolving fund; and to make an appropriation.
The People of the State of Michigan enact:
388.221 Insolvent school districts; definitions. [M.S.A. 15.1919(251)]
Sec. 1. As used in this act:
(a) “School district” does not include an intermediate school district.
(b) “State board” means the state board of education.
388.222 Applicability of act. [M.S.A. 15.1919(252)]
Sec. 2. The procedures provided by this act may be used notwithstanding
any other provision of law to the contrary.
388.223 Eligibility for loan. [M.S.A. 15.1919(253)]
Sec. 3. The board of education of a school district that incurs a deficit
and is unable to meet its financial obligations and the fiscal conditions of
which is attributable at least in part to annual collections on tax settlement
lay of less than 85% of ad valorem taxes levied by the district is eligible to
apply for an emergency loan from the state. Such a district shall be con
sidered an insolvent district.
388.224 Certification of insolvency. [M.S.A. 15.1919(254)]
Sec. 4. A school district to be eligible for an emergency loan shall certify,
based upon a certified audit by the state treasury department, that the school
district is insolvent.
388.225 Application for loan, amount; review. [M.S.A. 15.1919(255)]
Sec. 5. The board of education of a school district meeting the criteria
*t forth in section 4 may apply to the state board for an emergency loan to
raeet its financial needs until the end of the fiscal year in which application
is made. If, after review, the state board of education finds that the district
™eets the criteria set forth in section 4, a recommendation for an emergency
,oan shall be submitted to the governor for review and recommendation to the
leg>slature.
388.226 Bonds, issuance, requirements; repayment of loan; monthly report.
[M.S.A. 15.1919(256)]
Sec, 6. The board of education of a school district eligible to receive an
'Urgency loan under the provisions of this act shall issue bonds in the amount
40aa
of the emergency loan, made payable to the state, in equal installments, in
not more than 10 years plus interest at the rate of 6% per annum beginning
with the first fiscal year after receipt of the loan. The bonds shall be payablt
out of any funds of the school district including state appropriations available
to the school district under any act. The amount due on the bonds with
interest in any fiscal year shall be deducted in equal portions from the last 3
payments of state school aid due the school district in each fiscal year. The
bonds shall also be the full faith and credit obligations of the school district
and all taxable property within the school district shall be subject to the levy
°f ad valorem taxes to repay the principal and interest obtained under the
bonds without limitation as to rate or amount. The board of education shall,
submit its budget for review and approval to the state department of education.
This budget shall be a balanced budget and shall include a minimum repay
ment of 10% of the original face amount of the loan received under this art,
plus interest at the statutory rate. The district shall submit a monthly ®
penditure report to the state department of education.
388.227 Operating millage, minimum levy; reorganization.
[M.S.A. 15.1919(257)]
Sec. 7. However, any school district not levying a minimum of 20 mils
for operating purposes in the calendar year for which it receives an emergency
loan shall be reorganized by the state board of education following recom
mendation by the state committee on reorganization of school districts.
>
388.228 Expenditures within revenues; balanced budget.
[M.S.A. 15.1919(258)]
Sec. 8. The state department of education shall take any steps necessary;
to assure that the expenditures of a school district which receives an emergency;
loan under the provisions of this act shall not exceed revenues on an annua'
basis and that the school district maintains a balanced budget.
388.229 Reorganization; if unable to balance budget. [M.S.A. 15.1919(259)]
Sec. 9. If, upon application for an emergency loan, a board of education
certifies that the school district will not be able to balance its budget, tilt
district shall be reorganized by the state board of education following recoin-
mendation by the state committee on reorganization of school districts.
388.230 Balanced budget; reorganization. [M.S.A. 15.1919(260)]
Sec. 10. A school district receiving an emergency loan under the provisions
of this act shall balance its budget in the fiscal year immediately following 4f
fiscal year for which it receives an emergency loan or, following recommend;
tion by the state committee on reorganization of school districts, shall t*
reorganized by the state board of education.
388.231 Default in loan payment; reorganization. [M.S.A. 15.1919(261)]
Sec. 11. A school district
of this act, which defaults in
receiving an emergency loan under the provisions
repayment of the loan, shall be reorganized
41aa
the state board of education following recommendation by the state committee
on reorganization of school districts.
388.232 Reorganization; hearing, notice, recommendations.
[M.S.A. 15.1919(262)]
Sec. 12. Prior to reorganization of a school district under this act, the
state committee on reorganization of school districts shall hold a hearing in
the district to be reorganized. Notice of the time and place of the hearing
shall he given the voters of all school districts involved in the proposed re
organization. The boards of education of the intermediate districts involved
in the proposed reorganization shall make recommendations to the state com
mittee regarding the proposed reorganization.
388.233 Determination if reorganization warranted; report.
[M.S.A. 15.1919(263)]
Sec. 13. Within 20 days after receipt of a transcript of the hearing and
recommendations of the boards of education of the intermediate districts, the
state committee on reorganization of school districts shall determine if condi
tions exist warranting reorganization of the district under this act. Upon a
determination by the state committee that conditions in a school district war
rant reorganization, the state committee shall transmit its report with recom
mendations to the state board of education.
388.234 Report and recommendations; comments; determination.
[M.S.A. 15.1919(264)]
Sec. 14. The state board of education shall publish the report and recom
mendations of the state committee on reorganization of school districts and
shall invite objections or comments to be filed with it within 20 days following
publication of the report. The state board then shall consider the report of
the state committee, together with the comments and objections filed) and make
a determination as to indorsement of the finding of the state committee.
388.235 Reorganization by state board; finality. [M.S.A. 15.1919(265)]
Sec. 15. The state board, upon indorsement of the finding of the state
committee on reorganization of school districts that reorganization of a school
district is warranted, shall reorganize the district with 1 or more districts
contiguous to it in such a manner as will provide the most equitable educational
opportunity for all of the students of the reorganized district, and shall determine
the effective date of reorganization. Action by the state board of education
shall be final.
388.236 Bonded indebtedness of original and reorganized school districts.
[M.S.A. 15.1919(266)]
Sec. 16. If a school district attached under the provisions of this act at the
low reor8anization has a bonded indebtedness incurred after December 8,
> its identity shall not be lost and its territory shall remain as an assessing
î tf PurPoses such bonded indebtedness until the indebtedness has been
re ed or the outstanding bonds refunded by the reorganized district. The
42 aa
board of the reorganized district, or the boards of districts receiving school
buildings with an existing bonded debt shall constitute the board of trustees
for the original district having a bonded indebtedness and the officers of the
reorganized or successor district shall be the officers for the original district
If any original bonds of the reorganized district have been refinanced in any
way, the state board of education shall make the final determination as to
placement of the responsibility with the 1 or more boards of education receiving
the buildings as to their responsibility in acting as the board of trustees for
the original district. The board of each district assigned the responsibility
as the board of trustees for any bonded indebtedness of the divided district
shall certify and order the levy of taxes for the bonded indebtedness in tie
name of the original district.
388.237 Assumption of bonded indebtedness. [M.S.A. 15.1919(267)]
Sec. 17. Any time after 3 years following the reorganization of a school
district under this act, a district receiving a building having an existing bonded
indebtedness and assuming the responsibilities set forth in section 16, may
assume the obligation of the bonded indebtedness incurred after December 8,
1932, of the school building attached to its district under the provisions of this
act, and pay the same from the proceeds of a debt retirement tax levy spread
uniformly over the territory of the reorganized or successor district when the
electors of the reorganized or successor district approve an increase in the
limitation on taxes for that purpose and the school tax electors of the district
have approved the assumption of such bonded indebtedness. Assumption ol
the bonded indebtedness of an original school district does not release the
territory of the original district from the final responsibility of paying the,
obligation or rescind the increase in the limitation on taxes pledged to the j
bond issue or available to it in the original district, nor be construed as so
doing. When the bonded indebtedness of an original district has been so
assumed, the board of the reorganized or successor district shall certify and
order the levy of taxes for the bonded indebtedness equivalent in terms of
money to those required by the terms under which the indebtedness was origi- j
nally incurred and carry out all provisions of the original bond contract. The
election to assume the bonded indebtedness of an attached district may h£
held at any time after 3 years following the effective date of reorganization;
when a proposal is placed before the school tax electors to increase the
bonded indebtedness of the combined district.
388.238 Committee on reorganization; continuing existence.
[M.S.A. 15.1919(268)]
Sec. 18. The state committee on reorganization of school districts shall
continue in existence for purposes of this act, notwithstanding any expiration
date otherwise provided by law.
388.239 Emergency loan revolving fund; approval of loan.
[M.S.A. 15.1919(269)]
Sec. 19. The school emergency loan revolving fund is created in the state
treasury from which emergency loans shall be made to school districts as
43 aa
provided in this act. The fund shall consist of sums appropriated by the
legislature plus repayments and interest on loans. The treasurer shall transfer
any amount in the fund in excess of $300,000.00 to the general fund. Upon
approval of an application for an emergency loan by concurrent resolution of
the legislature or, when the legislature is not in session by majority vote of
the members of the special commission on appropriations created by Act No.
120 of the Public Acts of 1937, as amended, being sections 5.1 to 5.5 of the
Compiled Laws of 1948, the state treasurer shall issue his warrant on the fund
for the amount of the loan. There is hereby appropriated from the general
fund to the school emergency loan revolving fund the sum of $300,000.00.
388.240 Expiration date. [M.S.A. 15.1919(270)]
Sec. 20. This act shall expire June 30, 1973.
This act is ordered to take immediate effect.
Approved July 25, 1972.
A C T 1, MICH. PUB. A C TS O F 1973
AN ACT to am end se c tio n 681 o f A c t N o . 269 o f th e P u b lic A cts o f 1955, en tit led “ A n a c t t o p r o
vide & system o f p u b lic in s tru c tio n a n d p r im a ry s c h o o ls ; to p ro v id e f o r th e c la ss ifica tion , o rg a n iza
tion, regulation and m a in ten a n ce o f sch oo ls an d sch o o l d is t r ic ts ; to p re s cr ib e th e ir r ig h ts , p o w e rs ,
duties and p r iv ile g e s ; t o p ro v id e f o r re g is tra t io n o f s ch oo l d istr ic ts , and t o p re s cr ib e p o w e rs and
duties with respect th e r e to ; t o p ro v id e f o r an d p re s c r ib e the p o w e rs and d u ties o f c e r ta in b o a rd s
>nd officials; to p re scr ib e p e n a lt ie s ; an d t o rep ea l ce rta in a cts and p a rts o f a c ts ,” b e in g section
540.681 o f the C om piled L a w s o f 1 9 7 0 ; and t o a d d se c t io n 689.
T he P eople o f the S tate o f M ichigan en act:
Section 1. Section 681 of A c t N o . 269 of th e P u b lic A c ts of 1955, being se c tio n 34 0 .68 1 o f th e
Compiled Laws of 1970, is amended and section 68 9 is added to read as follows:
, Sec. 681. ( l ) A n y sch oo l d is tr ic t , b y a m a jo r it y v o te o f th e r e g is te re d sch oo l ta x e le c to rs v o t-
on the question a t an an nu al o r sp ec ia l e le c tio n ca lled f o r th a t p u rpose , m a y b o r r o w m on ey
and issue bonds o f th e d is tr ic t t o d e fr a y a ll o r a n y p a r t o f th e co s t o f p u rch a s in g , e re ct in g , co m
pleting, rem odeling, im p ro v in g , fu rn is h in g , re fu rn is h in g , e q u ip p in g , o r re e q u ip p in g sch o o l bu ild in gs ,
structures, athletic fields, p la y g ro u n d s , o r o th e r fa c il it ie s , o r a n y p a rts th e r e o f o r a d d itio n s th e r e to ;
acquiring, preparing , d eve lop in g , o r im p ro v in g sites , o r a n y p a r ts th e r e o f o r a d d itio n s th e re to , f o r
school buildings, stru ctu res, a th le tic fields, p la y g ro u n d s , o r o th e r fa c i l i t ie s ; p u rch a s in g sch oo l b u s e s ;
Participating in the a d m in is tra tiv e costs o f an u rb a n ren ew a l p ro g ra m th ro u g h w h ich th e sch oo l
s t r ic t desires to a cqu ire a s ite o r a d d ition th e re to f o r s ch oo l p u r p o s e s ; r e fu n d in g all o r a n y p a rt
“ existing bonded in d e b te d n e ss ; o r th e a cco m p lish in g o f a n y c o m b in a tio n o f th e fo r e g o in g p u r -
Puses- No school d is tr ic t sh a ll issu e bon d s u n d e r th is ch a p te r f o r an am ou n t g re a te r th a n 1 5 %
!) L t0tal asse33e(! va lu a tion o f th e d is tr ic t , n o r sh all the bon ded in d ebted n ess o f a d is tr ic t e x -
beyond a p eriod o f 30 y e a rs f o r m on ey b o r r o w e d . R e fu n d in g b on d s o r th e r e fu n d in g p a r t o f
such.bond issue shall n o t be deem ed to be w ith in th e 1 5 % lim ita tion b u t sh a ll be deem ed to
44 aa
b e a u th orized in ad d ition th e re to . A n y b o n d qu a lified u n d er section 16 o f a r t ic le 9 o f the IS
sta te con stitu tion an d a n y im p lem en tin g leg is la tion shall n o t be in clu d ed f o r purposes of eels
la t in g the fo r e g o in g 1 5 % lim ita tion .
(2 ) N otw ith sta n d in g su b section (1 ) a d is tr ic t th at a t a n y tim e has an o p e ra tin g or projedt
o p e ra tin g d eficit in excess o f $100 .00 p e r m em b ersh ip p u p il m a y b o r r o w a su m o f not more fe
$7 5 ,000 ,000 .00 and issue its n eg otia b le in terest b e a r in g n otes o r bon d s f o r 'th e p urpose of funiis
th e d eficit in a cco rd a n ce w ith th is section . T h e a u th o r ity g ra n te d b y th is se c tio n shall be in al
t io n to and n ot in d e ro g a tio n o f a n y p o w e r g ra n te d to a d is tr ic t b y an y o th e r prov ision of thin
a n y o th e r act.
(3 ) T h e ex isten ce o f th e o p e ra tin g o r p ro je c te d o p e ra tin g d eficit an d th e a m ou n t thereof shallb
d e term in ed b y the d ep a rtm en t o f tre a su ry , u s in g n orm a l sch oo l a cco u n tin g p ra ctice s . I f the depart-
m en t o f trea su ry d eterm in es th at th ere is an o p e ra tin g o r p ro je c te d o p e ra tin g deficit, it shall mafe
its d eterm in ation , w h ich shall a lso in clu d e th e t o ta l a m ou n t o f the o p e ra tin g o r p ro jected operatin’
d e fic it, th e am oun t o f th e o p e ra tin g o r p ro je c te d o p e ra tin g d e fic it p e r m em b ersh ip pupil and tit
p a y m en ts to the d is tr ic t fr o m th e sch oo l a id fu n d esta b lish ed b y section 11 o f a rt ic le 9 of thestatt
co n stitu tio n d u r in g th e fiscal y e a r im m ed ia te ly p re ce d in g th e fiscal y e a r in w h ich the notes or bond!
h e re in au th orized a re issued, ad ju s te d t o sh ow w h a t th ose p a y m en ts w ou ld h a ve been had they hi
d e r iv e d on ly fr o m the sales ta x m on eys req u ired to be d ep osited in the sch oo l a id fund , hereinafter
r e fe r re d to as “ sales ta x sta te a id p a y m e n ts” . T h e d e term in a tion b y th e d ep a rtm en t of treasury
sh all be final and con c lu s iv e as to th e ex is te n ce o f an o p e ra tin g o r p ro je c te d op era tin g deficit, tli>
a m ou n t th ereo f, the am ou n t th e r e o f p er m e m b ersh ip p u p il an d the sales ta x sta te aid payment
(4) T h e n otes o r bon d s m a y be issu ed in 1 o r m ore se r ie s b y reso lu tion ad op ted by the tali
o f th e d istr ic t, w h ich reso lu tion shall in each ca se m ak e re fe re n ce to th e determ in ation of the dt'
p a rtm e n t o f trea su ry . T h e am ou n t o f an y n ote o r b on d issu ed shall n o t ex ceed the amount o il
o p e ra tin g deficit as sh ow n b y the d e term in a tion . T h e to ta l a g g re g a te am ou n t o f notes or tail
th a t m a y be issued and o u ts ta n d in g b y a n y d is tr ic t u n d er th is section shall n ot exceed the annul
a s m a y b e serv iced as to th e ir m a x im u m an nu al p r in c ip a l an d in terest requ irem en ts by an awnl
equ a l to 5 0 % o f the sales ta x sta te a id p a y m en ts . T h e riotes o r bon ds sh all p ledge primarily In
th e ir p aym en t e ith er o f the fo l lo w in g sou rces o f r e v e n u e :
(a ) R ece ip ts d eriv ed fr o m th e im p o s it io n on an e x c is e ta x lev ied p u rsu a n t to section 689. i
( b ) R ece ip ts d eriv ed fr o m th e levy an d co lle ct io n o f an ad va lorem ta x lev ied upon all taxiib
r e a l an d p erson al p ro p e r ty w ith in th e d is tr ic t o f n o t m o re th a n 2.25 m ills f o r each year the nit®
o r b on d s are ou tstand ing .
T h e d is tr ic t shall p ledge as se co n d a ry se c u r ity f o r the n otes o r bon d s fu tu re state aid moneu
a n d a n y o th er fu n d s o f th e d is tr ic t le g a lly a v a ila b le th e r e fo r .
)
( 5 ) T h e notes o r bon ds shall m a tu re se r ia lly w ith an nu al m a tu r ities in n o t m ore than 10yean
fr o m th e ir date and shall b e a r in terest, p a y a b le a n n u a lly o r sem iann ua lly , a t a ra te o r rates not»
ce e d in g 6V2 % p e r annum . T h e first p r in c ip a l in s ta llm en t on th e n otes o r b on d s shall be duel*
m o re th a n 1 y e a r fr o m th e d ate th e r e o f and a p r in c ip a l in sta llm en t on th e n otes shall not be » .
th a n l/z o f th e p rin c ip a l am ou n t o f a n y su b seq u en t p r in c ip a l insta llm ent. T h e notes or bonds at!
b e m ad e su b je c t t o red em p tion p r io r to m a tu r ity w ith o r w ith o u t p rem iu m in a manner a « |!
t im e s as shall be p rov id ed in th e reso lu tion a u th o r iz in g th e issu an ce o f the n otes or bonds,
(6 ) N otes o r b on d s issu ed u n d er th is se c tio n shall be v a lid and b in d in g ob ligations of the d®
tr ic t , n o tw ith sta n d in g a su bsequ en t ju d ic ia l d e te rm in a tio n o f the in v a lid ity o f an y legislation pn i
v id in g f o r state a id p aym en ts t o d is tr ic ts o r o f th e system o f ta x a tio n f o r the support of the
lie sch oo l system o r o f a sp ecific ad v a lorem o r o th e r ta x th at a d is tr ic t m a y be authorized to
i t b e in g the in ten t and p u rp ose th a t th e n otes o r bon ds an d the in terest th ereon be promptly!,
w h en due fr o m th e first m on eys ava ila b le to th e d is tr ic t n o t p led g ed f o r o th e r indebtedness
e x c e p t to the exten t th a t the use is r e s tr ic te d b y th e state con stitu tion o r th e law s o f the
S ta tes o f A m erica .
(7 ) B e fo re a d is tr ic t shall issu e an y n otes o r bon d s u n d er th is section it shall make s* orll![,
p lica tio n to th e m u n icip a l fin ance co m m iss io n on fo r m s t o be fu rn ish e d b y th e municipal W
45aa
commission for perm ission to do so and shall attach thereto the determ ination o f the department
of treasury and a certified copy o f the resolution authorizing the notes or bonds. Notes o r bonds
shall not be issued hereunder until the d istrict has first secured approval o f the m unicipal finance
commission to the issuance and to the form o f notice o f sale proposed to be used. In determ ining
whether a proposed issue o f notes or bonds shall be approved the m unicipal finance com m ission
shall take into consideration : (a ) W hether the notes o r bonds conform to this section : and (b )
whether the amounts pledged fo r the paym ent o f the notes or bonds w ill be sufficient to pay the
principal and interest as the same becom es due. The m unicipal finance com m ission m ay require
the district to reduce the am ount o f the note or bond issue or to alter the schedule o f repaym ent.
The provisions o f chapter 2 o f A ct N o. 202 o f the Public A cts o f 1943, as amended, being sections
132.1 to 132.4 o f the M ichigan Com piled Laws, relating to the m unicipal finance com m ission, its
powers and duties and its orders shall govern w ith respect to the notes or bonds authorized by
this section.
(8) The notes or bonds shall be sold at not less than par and at public sale a fter notice by pub-
lication at least 14 days before the sale in a publication printed in the English language and cir-
eulsted in this state, which carries as part o f its regular service notices o f sale o f m unicipal
bonds and which are approved by the m unicipal finance com m ission as a publication com plying
with the foregoing qualifications or at private sale as authorized by the m unicipal finance com
mission. The proceeds o f sale o f any notes authorized under this section shall be used solely fo r
the purpose of paying necessary operating expense o f the district, including the paym ent o f prin
cipal of and interest on notes or bonds o f the d istrict issued fo r operating purposes under this o r
sty other act
(9) A board o f education which borrow ed pursuant to subdivisions (2 ) to (8 ) o f section 681
ihall submit its budget fo r review and approval to the department. The departm ent shall take
any steps necessary, subject to the district’s contracts and statutory obligations to assure that the
fitpenditures o f a school district w hich receives m oneys under this am endatory act shall not ex
ceed revenues on an annual basis and that the school d istrict m aintains a balanced budget.
(10) The school district shall file a report w ith the auditor general 45 days a fter the effective
date of this act and every 30 days thereafter disclosing the results o f the financial operation o f
the district for the first 30 days and 30 days thereafter fo llow in g the effective date o f this act.
The auditor general shall evaluate the report and his findings shall be forw arded to the legislature.
Sec. 689. (1) The board o f a district o f the first class having boundaries coterm inous with those
of a city which imposes a city incom e tax by ordinance adopted pursuant to A ct No. 284 o f the
Public Acts of 1964, as amended, being sections 141.501 to 141.787 o f the M ichigan Compiled Laws,
®ab by resolution adopted by a m ajority o f its m embers elected and serving, adopt, levy, assess,
Md collect an excise tax, upon incom e received, earned, or otherwise acquired by corporations
>»d resident individuals. A n excise tax so adopted-cshall not exceed 5 0 rJ o f the liability o f the
corporation or resident individual fo r a 2% incom e tax, im posed by the city w ith coterm inous
(2) A resolution so adopted shall continue in effect until rescinded by a subsequent resolution.
A tax imposed pursuant to this section may not be rescinded or the rate thereof reduced i f there
,re outstanding obligations fo r w hich the tax is pledged.
,, ^ A resolution so adopted shall provide that all taxpayers subject to the tax imposed by
u* reso]ution may elect to com pute their tax fo r a calendar year, or fiscal year, during w hich
e tax is made effective or rescinded, by any o f the follow in g m eth ods:
ortĥ *aX may com Pu‘ e<3 as *f tax w as effective on the first day o f the calendar year,
of wh' ?x? ayer’3 fiscal year, and the am ount so com puted m ultiplied by a fraction , the numerator
yea hlC“ , '3 number o f months the tax was in effect during the taxpayer’s calendar or fiscal
year' A ^ e. ^nom inator o f which is the num ber o f months in the taxpayer’s calendar or fiscal
I it P01̂ '011 ° f a month which is 15 days or m ore shall be considered a m onth and a period o f
an 15 days shall be disregarded.
ifatrirt-P1* may ke computed by determ ining the am ount o f the city tax g iv ing rise to the
counti a* *3 allocable to the period the d istrict tax is in effect in accordance with any ac-
n8 method satisfactory to the adm inistrator.
46aa
(4 ) A district adopting a tax pursuant to this section shall certify within 5 days to the tit]
clerk o f the city w ith coterm inous boundaries the adoption o f the resolution and tax. The effo
tive date o f a tax im posed by a district pursuant to this section shall be the first day o f the mort
w hich is 20 days or m ore fo llow in g the adoption o f the resolution, unless the resolution proviJe
otherwise. The tax shall not be declared to be retroactively effective prior to the first day of tli
calendar year in w hich the resolution was adopted. The enforcem ent, collection, and refund»
thority o f the city with coterm inous boundaries shall continue in effect a fter the effective dated
expiration with respect to liabilities incurred during the period the tax im posed by the distriil
pursuant to this section was in effect.
(5) A district tax im posed by resolution passed pursuant to this section shall be administered
by the adm inistrator designated by the city having boundaries coterm inous w ith the district to
adm inister the city tax, and the treasurer o f that city shall collect and account fo r the revem
A fter deducting the am ount o f any refunds, the city treasurer shall pay over the balance to til'
d istrict as soon as practicable. A s often as practicable, but not less often than monthly, the city
treasurer shall pay over and distribute to the district the amount o f taxes w hich it is estimated!!
be entitled to which are received in the form o f w ithholding rem ittances and estimated taxes pail
(6 ) A resolution im posing a d istrict tax pursuant to this section shall provide fo r withholding
and rem itting by em ployers doing business or m aintaining a place o f business within the district,
fo r declaration and paym ent o f estim ated taxes, fo r the prom ulgation by the administrator of ap
propriate rules, fo r the appeal from the adm inistrator’s decisions, fo r ju d icia l review, for inter,
*st and penalties, fo r jeop ard y assessments, fo r a statute o f lim itations, fo r consolidated and joint
returns, fo r refunds, and fo r such other provisions as are necessary so that the district tax may
be adm inistered, enforced , and collected in substantially the same m anner as the tax imposed Ij
the city w ith coterm inous boundaries, and the adm inistrator shall prepare and make available!!
w ithholding tables and tax return and other fo rm s as are necessary to adm inister the district to
(7 ) F or purposes o f this section, the term s “ resident individual", "corpora tion” , “ fiscal yeai"
“ adm inistrator", “ em ployer” , "person” , “ business” , and “ doing business” have the same mesfflf
as in A ct No. 284 o f the P ublic A cts o f 1964, as amended,^and the term “ taxpayer” means s P
son required by the district's resolution to file a return w ith respect to, o r to pay, the tax.
Section 2. Pursuant to section 8 o f article 3 o f the state constitution, the legislature requests the I
opinion o f the suprem e court as to the constitutionality o f this act.
Section 3. This am endatory act shall take effect M arch 13, 1973, o r when Senate Bill No. IS!
o f the 1973 Regular Session is enacted into law, whichever is later.
T his act is ordered to take im m ediate effect.
Approved, March 12, 1973
ACT 2, MICH. PUB. ACTS OF 1973
A N A C T to amend the title o f A ct No. 258 o f the Public A cts o f 1972, entitled “ An act to W*
appropriations fo r the purpose o f aiding in the support o f the public schools and the interne >
school districts o f the sta te ; to provide fo r the disbursem ent o f the appropriations; to permit sc
districts to borrow in anticipation o f the paym ent o f state aid and to regulate the effect thereo,
provide penalties fo r violation o f the a ct ; to supplement the school aid fund by the levy and co
tion o f certain excise ta x e s ; and to repeal certain acts and parts o f acts,” as amended, being
tions 388.1101 to 388.1279 o f the Compiled Laws o f 1970; and to add sections 138, 139 and 1
47aa
The P eop le o f the S tate o f M ichigan en act:
Section 1. The title o f A ct N o. 258 o f the Public A cts o f 1972, as amended, being sections
388.1101 to 388.1279 o f the Compiled Law s o f 1970, is amended and sections 138, 139 and 140 are
added to read as fo llow s :
TITLE
An act to make appropriations f o r the purpose o f aiding in the support o f the public schools and
the intermediate school d istricts o f the s ta te ; to provide fo r the disbursem ent o f the appropriations;
to permit school districts to borrow and to regulate the effect th e r e o f; to provide fo r issuance o f
bonds and other evidences o f indebtedness by the sta te ; to provide penalties fo r violation o f the
act; to supplement the school aid fund by the levy and collection o f certain ta x e s ; and to repeal
certain acts and parts o f acts.
Sec. 138. (1) The board o f education o f a school d istrict o f the first class m ay apply to the
municipal finance com m ission fo r cash advances to m eet the school d istrict operating needs which
occur before the end o f the fiscal year in w hich the application is made, i f the board has indicated
by official resolution its intention to levy 2.25 m ills f o r the retirem ent o f an operating or projected
operating deficit, or has levied an excise tax o f at least 15 % o f the liability o f the corporation or
resident individual, pursuant to either subdivision (b ) o f subsection (4 ) o f section 681 or section
689 of Act No. 269 o f the Public A cts o f 1955, as amended, being sections 340.681 and 340.689 o f the
Michigan Compiled Laws. If, a fter review , the m unicipal finance com m ission finds that the district
does need the cash advances requested, the m unicipal finance com m ission, by an appropriate order
which states the amount to be advanced, shall d irect the state treasurer to pay to the school d istrict
the amount stated in the order, and the state treasurer shall prom ptly pay the am ount to the
treasurer of the school d istrict from the m oneys appropriated fo r that purpose by this section.
(2) A school district receiving an advance under this section shall issue notes in the am ount o f
the advance, made payable to the state o f M ichigan, due in not m ore than 180 days a fter the date
of the notes, with interest at 5 % per annum. The notes shall be repayable from borrow ing author
ized by law to fund advances made under this section, or from any other funds legally available to
the district for the repaym ent. I f a school d istrict receiving advances from the state under this
section has not repaid the advances when due, then the state treasurer shall deduct equal am ounts
from each state aid paym ent due the school d istrict thereafter, so that the advances w ith interest
»t 5% per annum shall be repaid in 2 years from the date the notes becom e due.
(3) A school district shall not receive m ore than $30,000,000.00 in advances under this section
hi any 1 school year.
(4) The school operating advance fund is created in the state treasury from w hich advances
ahall be made to school d istricts as provided in this section. T he fund consists o f sums appropria
ted by the legislature. The state treasurer shall issue his w arrant on the fund fo r the am ount o f
he advance to be made in accordance w ith subsection (2 ) . There is appropriated from the general
und to the school operating advance fund the sum o f $30,000,000.00. M oneys received upon repay
ment of an advance shall be deposited in the general fund.
Sec. 139. ( l ) The state treasurer m ay borrow m oney and issue negotiable interest bearing state
iet h ^ P u r p o s e o f m aking loans to school d istricts that at any tim e have an operating or pro-
15 ed operating deficit in excess o f $100.00 per m em bership pupil in accordance w ith this section,
sh iV t notes issued in accordance w ith this section shall not be a general obligation o f the state,
with' and credit o f the state and shall not be an indebtedness o f the state
»nd ' i f meaninS o f any constitutional lim itation on state indebtedness, but shall be payable solely
dist' t t .*le Paym ents o f principal and interest on the loans made by the state treasurer to a
fion 0iLdiStrict3 as Prov i^ed in this section. State notes issued under the provisions o f this sec-
, , ? ay oe issued fo r the purpose o f m aking loans to 1 or m ore districts,
of th .no*es issued under this section shall be issued only upon the written recom m endation
treasu 8uper*nten<ient o f public instruction based upon the determ ination o f the departm ent o f
thereof^2 3 4 * * * 8,8 prov^ e£i m subsection (3 ) and upon the adoption o f a resolution authorizing the issuance
by the state adm inistrative board. The resolution shall specifically approve the recom m en-
bnefly describe the loan or loans to be made, the am ount, m aturity schedule, m aximum rate
o f in terest, d a te and fo r m o f th e sta te n otes , and shall con ta in an ir re v o ca b le p led ge fo r the pay. i
m e n t th e r e o f o f th e loan re p a y m e n ts to be m ad e b y th e d is tr ic t o r d is tr ic ts r e ce iv in g a loan mis
t h is section . T h e p rin cip a l a m ou n t o f th e n otes sh a ll n o t ex ce e d th e am ou n t o f th e loan or loans
t o b e m ad e p lus an a m ou n t su fficien t to p a y th e c o s ts o f is su in g an d d e liv e r in g th e state notes. Tli ‘
s ta te n o tes sh all m a tu re ser ia lly w ith annual m a tu r ities in n o t m o re th a n 10 y e a rs from their dat(
a n d shall b e a r in terest, p a y a b le an nu ally o r sem ian n u a lly , a t a ra te o f n ot m ore th a n 6 % per aim®,
T h e first p rin cip a l in s ta llm en t on th e s ta te n o tes sh all be d ue n o t m ore th a n 1 y e a r from the dais
th e r e o f and a p rin cip a l in s ta llm en t on th e s ta te n otes shall n o t b e less th an 1/3 o f the principal
a m o u n t o f a n y su b seq u en t p rin cip a l in sta llm en t. T h e s ta te n otes m a y be m ad e su b ject to redemp
t io n p r io r to m a tu r ity w ith o r w ith o u t p rem iu m in a m a n n er and a t t im es as shall be provided ii
t h e reso lu tion a u th o r iz in g th e issu a n ce o f th e s ta te n otes . T h e m a tu r ity and in terest rate of the
s ta te n otes sh all b e so fixed as t o p erm it p a y m e n t o f th e p rin cip a l o f and in terest thereon in M
aa th e sam e b eco m e s due fr o m th e loan o r loan s t o be m ade to th e d is tr ic ts as h erein provided.
(3 ) T h e e x is te n ce o r p ro je c t io n o f an o p e ra tin g d e fic it o f a n y d is tr ic t and th e amount thereof
sh all be d e term in ed b y th e d ep a rtm en t o f tre a su ry , u s in g n orm al sch oo l a cco u n tin g practices, II
th e d ep a rtm en t o f tre a su ry d e term in es th a t f o r a n y d is tr ic t th e re is o r w ill b e a t the close of tli
fisca l y e a r en d in g Ju ne 30, 1973, an o p e ra tin g d e fic it, it shall m ak e a d eterm in ation so stating,
w h ich sh all in clu d e th e to ta l a m ou n t o f th e o p e ra tin g o r p ro je c te d o p e ra tin g d e fic it, the amount cf
t h e o p e ra tin g o r p ro je c te d o p e ra tin g d e fic it p e r m e m b e rsh ip pup il and th e p a y m en ts to the district
f r o m th e sch oo l a id fu n d e sta b lish ed b y se c tio n 11 o f a r t ic le 9 o f th e sta te con stitu tion duringtke
fisca l y e a r im m ed ia te ly p re ce d in g th e fiscal y e a r in w h ich th e n otes h ere in au th orized are issued, '
a d ju s te d to sh ow w h a t th o se p a y m e n ts w ou ld h a v e been had th e y been d e riv e d on ly from the site x
ta x m on eys req u ired t o b e d ep osited in th e sch oo l a id fu n d , h e re in a fte r r e fe r re d to as “ sales tax1
sta te a id p a y m en ts” . T h e d e term in a tion b y th e d ep a rtm en t o f tre a su ry shall b e final and conclusive l
a s t o th e ex isten ce o f an o p e ra tin g d eficit o r p ro je c te d o p e ra tin g deficit, th e am ou n t thereof, the ’
am ou n t th e re o f p er m em b ersh ip p up il, and th e sa les ta x sta te a id p a ym en ts .
(4 ) B e fo r e an y s ta te n o tes a re issu ed u n der th is se c tio n th e s ta te tre a su re r shall make sum
app lica tion to the m u n icip a l finance com m iss ion on fo r m s to Tie fu rn ish ed b y th e municipal financt l
com m iss ion f o r p erm iss ion to d o so and shall a tta ch th e re to th e d e term in a tion o f the department of
tre a su ry d escrib ed in p a ra g ra p h (3 ) o f th is se c t io n and a certified c o p y o f th e resolution author#- (
ln g th e sta te n otes . S ta te n o tes shall n ot be issu ed h ereu n d er until the sta te treasurer has M j
secu red approval o f th e m u n icip a l finance com m iss ion to th e issu an ce th e r e o f and to the form of'
n o tice o f sale p rop osed to b e used. In d e term in in g w h e th e r a p rop osed issu e o f sta te notes shall be ,
ap p roved th e m unicipa l finance co m m iss io n sh all tak e in to co n s id e ra tio n : (a ) W hether the state f
n o tes c o n fo rm to th e p ro v is io n s o f th is s e c t io n ; and (b ) w h e th e r th e am oun ts p ledged for the pay
m en t o f th e state n otes w ill b e su fficien t to p a y th e p rin cip a l an d in terest as th e sam e becomes due
j
(5 ) T he sta te n otes shall b e so ld at n ot less th a n p a r and a t p u b lic sale a f te r notice by publica
tion at least 7 d ays b e fo re th e sale in a p u b lica tion p rin ted in th e E n g lish lan gu age and circulated
in th is state , w h ich ca rries as p a r t o f its r e g u la r se rv ice n o tices o f sale o f m unicipal bonds and
w h ich is ap p roved b y th e m u n icip a l finance co m m iss io n as a p u b lica tion co m p ly in g with the tots- j
g o in g qualifications.
(6 ) T h e state tre a su re r m ay m ak e loan s t o a d is tr ic t th a t a t a n y tim e has an operating or pro
je c te d op era tin g d eficit in ex cess o f S100.00 p e r m e m b ersh ip pupil f o r th e p u rp ose o f funding th(
op era tin g o r p ro je c te d op era tin g d eficit or p a y in g o b lig a tion s issu ed to fu n d th e deficit in accord
ance w ith th is section bu t on ly fr o m the p roceed s o f sale o f sta te n otes issu ed in accordance *1®
th is section . T he m a k in g o f th e loan shall be ev id en ced b y in terest bea rin g n otes o f the districts1
d istr ic ts to w h om th e loan is m ade, w h ich n otes shall p led ge f o r th e ir p aym en t an y funds o f the® -1
tr ic t lega lly ava ilab le th e re fo r , and shall p led g e as se co n d a ry se cu r ity th e re fo r a n y future state sj
m oneys. T h e loan shall be in a p rin cip a l am ou n t equ a l to th e p rin cip a l am oun t o f state notes issued
in accord an ce w ith th is section o r equal to th at p o rt io n o f a sta te note issu e allocated for the P f
p ose o f m ak in g the loan . T h e p rin cip a l in s ta llm en ts o f the loan b y th e sta te trea surer to the d>!' 1
tr ic t shall becom e due 15 d ays p r io r to and in th e sa m e am ou n ts a s the p rin cip a l installments os
th e sta te n otes becom e due and th e in terest on th e loan shall be a t th e sam e ra te as the rate 0
49aa
interest on the state n otes and shall be p a ya b le 15 d a ys p r io r to th e in te re s t p a y m en ts on th e
state notes. In add ition th e d is tr ic t shall p a y at th e sam e t im e as each p rin cip a l and in terest p a y
ment on its loan b ecom es due th e ad d itiona l am ou n t as m a y be n e ce ssa ry to p a y p a y in g a g en t fees ,
costs and expenses on th e sta te n otes . In case an issu e o f s ta te n o te s is f o r th e p u rp ose o f m a k in g
loans to more than 1 d istr ic t the p rov is ion s o f th is se c tio n re la tin g to p rin cip a l and in terest rep a y
ments on the loans m ade and p a ym en t o f p a y in g a g e n t fe e s , co s ts and e x p en ses shall be a lloca ted
among the several d is tr ic ts to w h om loans are m ad e so th a t in th e a g g re g a te th e am ou n ts to be
received shall be fu lly su fficient t o p a y p rin cip a l o f and in te re s t on th e s ta te n o te s and th e p a y in g
agent fees, costs and exp en ses th ereon , as th e sam e b ecom e due.
(7) The resolution o f th e sta te a d m in istra tive b oa rd a u th o riz in g th e sta te n o tes shall requ ire
the establishment o f a debt re tirem en t fu n d . T h e reso lu tio n o f th e d is tr ic t a u th o riz in g the loan
from the state treasurer shall d irect th e tre a su re r o f th e d is tr ic t t o pay t o th e sta te tre a su re r th e
amount due to the state trea su rer p u rsu a n t to su b section ( 6 ) , and i f th e p a y m e n ts a re n ot du ly
made, authorize the sta te trea su rer fo r and on b e h a lf o f th e d is tr ic t to d e p o s it in th e debt re t ire
ment fund from the sta te sch oo l a id fu n d an am oun t equal t o th e a g g re g a te a m ou n t o f p rin cip a l and
interest due on the d istr ic t note, su ch am ou n t to b e d ed u cted fr o m th e n e x t s ta te sch oo l a id p aym en t
of the district. I f the p aym en ts are not du ly m ad e , th e s ta te tre a su re r shall a c t as au th orized in
the resolution o f the d istr ic t au th oriz in g th e loan . M on ey s d ep osited ir* th e d e b t re tirem en t fu n d
shall be deemed to have been paid to the d is tr ic t . T h e sta te tre a su re r shall p a y the p rin cip a l o f
and interest on the state n otes as th e y com e due, to g e th e r w ith p a y in g a g e n t fe e s , cos ts , and e x
penses in connection th erew ith , fr o m m on eys in th e d eb t re tire m e n t fu n d , e x ce p t th a t th e m on eys
therein may be invested as p a rt o f the s ta te ’s com m on ca sh . T he m a tu r ity o f a n y su ch in vestm en t
shall not be later than the tim e w h en the m o n e y s so in v ested w ill be re q u ire d f o r th e p a y m en t o f
interest or principal and in terest on th e sta te n otes .
(8) The proceeds o f sale o f a n y sta te n otes au th orized u n der th is se c tio n sh a ll b e used so le ly f o r
the purpose o f m aking loans to d is tr ic ts h a v in g an o p e ra tin g d e fic it as p rov id ed in th is se c tio n and
“ *® Purpose o f p a y in g th e co s ts o f th e issu a n ce and d e liv e ry o f s ta te n otes . T h e p roceed s o f sale
M the state notes shall be d ep osited in a sep arate a ccou n t to b e esta b lish ed b y th e sta te trea su rer
be designated “ sch oo l o p e ra tin g n o te p ro ce e d s a c co u n t” . S ta te n o te s sh a ll n ot b e d e livered u n d er
s section until th e d is tr ic t th a t is to re ce iv e a lo a n h a s a u th o rize d th e b o r ro w in g o f m o n e y and
d istrict n otes an d has d e live re d th e d is tr ic t n o tes to th e sta te tre a su re r in a cco rd a n ce
™h this section.
forM ^ ^ board o f ed u ca tion w h ich b o r ro w e d p u rsu a n t t o se c t io n 138 shall su b m it its b u d g e t
assuFSV̂ W Snt* abProva ̂ th e d ep a rtm en t. T h e d e p a rtm e n t shall ta k e a n y step s n e ce ssa ry t o
,,r e e x P®ndi tures o f a s ch o o l d is tr ic t w h ich re ce iv e s m o n e y s u n der th is a m e n d a to ry a c t
liudvet T̂ XCee< ̂ rev.enues on an an nu al b a s is a n d th a t th e sch o o l d is tr ic t m a in ta in s a ba lan ced
m a S ' 1 he auth ority o f th e d e p a rtm e n t o f e d u ca t io n shall n o t su p ersed e a n y e x is t in g co n tra cts
district* K° ° ° a c *asa s c b ° ° l d is tr ic t , o r a n y e x is t in g s ta tu to ry ob lig a t io n o f th e sch oo l
school d istr ic t shall file a r e p o r t w ith th e a u d ito r g en era l 4 5 d a y s a f te r th e e ffe c t iv e d a te
trict fnr h, « every 30 d a y s th e r e a fte r d is c lo s in g th e resu lts o f th e financial o p e ra tio n o f th e d is -
suditor tr " e , v ^a y s a n d 30 d a y s th e r e a fte r fo llo w in g th e e ffe ct iv e d a te o f th is a ct. T h e
general shall eva luate th e r e p o r t a n d h is f in d in gs shall b e fo rw a rd e d to th e leg is la tu re .
the ouin!1 ^ |>u5suant t o section 8 o f a r t ic le 3 o f th e sta te c o n stitu tio n , th e le g is la tu re req u ests
on o f the suprem e co u r t as to th e co n s t itu tio n a lity o f th is act.
sction 3. This am en d a tory a c t sh all ta k e e f fe c t M a rch 13, 1973.
,̂ 1*S act '3 ordered to tak e im m ed ia te e ffe ct .
Approved, March 13> 1973
50aa
ACT 12, MICH. PUB. ACTS OF 1973
A N A C T to provide fo r em ergency financial assistance for school districts; to prescribe certain powen
and duties o f the intermediate board o f education in connection therewith; to provide certain powers aii
duties o f the state board o f education in connection therewith; to create an em ergency loan revolving fund;
and to m ake an appropriation.
The People o f the State o f Michigan enact:
Sec. 1. As used in this act:
(a) “School district" does n ot include an interm ediate school district.
(b ) “ State board” means the state board o f education.
Sec. 2. T he procedures prov ided b y this act m ay b e used notwithstanding provisions o f law to lit
contrary.
Sec. 3. T he board o f education o f a school district that, for the 1971-72 school year, because of loss oi
at least 5 % o f its state equalized valuation as a direct result o f a decision on a property tax appeal, ffl ,
unable to com plete or after adopting a resolution to close the schools after com pletion o f less than IS)
days, was ordered b y the superintendent o f p ublic instruction or the state board o f education to compleli ;
a m inim um o f 180 d a y s , a n d partly as a result o f borrow ing m oney to com plete 180 days in the 197111
sch oo l year, is rendered unable for the 1972-73 sch oo l year to provide 180 days, o r unable to provided
hours o f instruction as established b y state board rule, is e lig ib le to apply fo r an em ergency loan from lit
state, not to exceed $125,700.00. I
Sec. 4. A school district to b e eligible fo r an em ergency loan shall certify , based upon a certified audit or (
inform ational examination b y the auditor general or the departm ent o f treasury, that the school district
m eets the criteria o f section 3.
Sec. 5. T he board o f education o f a school district m eeting the criteria set forth in sections 3 and 4 m: *
app ly to the state board for an em ergency loan. If, after review , the state board o f education finds that®
district meets the criteria set forth in sections 3 and 4, a recom m endation for an em ergency loan shall«
subm itted to the governor. I f the governor concurs w ith the recom m endation he shall authorize an ei»
gen cy loan.
Sec. 6. T he board o f education o f a school district eligible to receive an em ergency loan under this s'1 ,
shall issue notes in the am ount o f the em ergency lo .n , m ade payable to the state, in equal installments,:! ,
not m ore than 10 years plus interest at 6CA per annum beginning with the first fiscal year after receipt! [
the loan. The notes shall be payable out o f all operating funds o f the school district. T he board °‘ t
tion shall submit its budget for review and approval to the state departm ent o f education. This to 9 j
shall be a balanced budget and shall include a m inim um repaym ent o f at least 10% o f the original [
am ount o f the loan received under this act, plus interest at 6 r/c per annum. T he district shall sub® j
m onthly expenditure report to the board o f education o f the intermediate school district to which i ,
constituent. 1
a
Sec. 7. The board o f education o f the intermediate school district shall take steps necessary to assure th
the expenditures o f a school district w hich receives an em ergency loan under the provisions of this ac s
not exceed revenues on an annual basis and that the sch oo l district maintains a balanced budget.
Si
Sec. 8. A school district not levying a minimum o f 19.65 mills for operating purposes in the calendar t]
fo r w h ich it receives an em ergency loan shall be reorganized b y the state board o f education to c
recom m endation by the state com m ittee on reorganization o f school districts.
Sec. 9. The. state department o f education shall take any steps necessary to assure that the expend®̂ , h
o f a school district w hich receives an em ergency loan under the provisions o f this act shall no <
revenues on an annual basis and that the school district maintains a balanced budget.
Sec. 10. If, upon application for an em ergency loan, a board o f education certifies that the s^100! .^ [,[.
w ill not be able to balance its budget, the district shall be reorganized by the state board o f educa
low ing recom m endation b y the state com m ittee on reorganization o f school districts.
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Sec. 11. A school district receiving an em ergency loan under the provisions o f this act shall balance its
budget in the fiscal year im mediately fo llow in g the fiscal year for w hich it receives an em erg en ce loan or,
following recommendation b y the state com m ittee on reorganization o f school districts, shall b e reorganized
by the state board o f education.
Sec. 12. A school district receiving an em ergency loan under the provisions o f this act, w h ich defaults
is repayment of the loan, shall b e reorganized by the state board o f education fo llow in g recom m endation
by the state committee on reorganization o f school districts.
Sec. 13. Prior to reorganization o f a school district under this act, the state com m ittee on reorganization
of school districts shall hold a hearing in the district to b e reorganized. N otice o f the time and place o f the
1 hearing shall be given the voters o f all school districts involved in the proposed reorganization. T he boards
of education of the intermediate districts involved in the proposed reorganization shall make recom m enda
tions to the state comm ittee regarding the proposed reorganization.
Sec. 14. Within 20 days after receipt o f a transcript o f the hearing and recom m endations o f the boards of
education of the intermediate districts, the state com m ittee on reorganization o f school districts shall deter
mine if conditions exist warranting reorganization o f the district under this act. U pon a determ ination by
the state committee that conditions in a school district warrant reorganization, the state com m ittee shall
transmit its report with recom m endations to the state board o f education.
Sec. 15. The state board o f education shall publish the report and recom m endations o f the state com m ittee
on reorganization of school districts and shall invite ob jections or com m ents to b e filed w ith it w ithin 20 days
following publication o f the report. T he state board then shall consider the report o f the state com m ittee,
together with the comments and objections filed, and make a determ ination as to indorsem ent o f the finding
of the state committee.
Sec. 10. The state board, upon indorsement o f the finding o f the state com m ittee on reorganization o f
school districts that reorganization o f a school district is warranted, shall reorganize the district with 1 or
more districts contiguous to it in such a manner as w ill p rovide the most equitable educational opportunity
for all of the students o f the reorganized district, and shall determ ine the effective date o f reorganization.
Action by the state board o f education shall be final.
Sec. 17. If a school district attached under the provisions o f this act at the time o f reorganization has a
oonded indebtedness incurred after D ecem ber 8, 1932, its identity shall not b e lost and its territory shall
temain as an assessing unit for purposes o f such bon ded indebtedness until the indebtedness has been retired
or the outstanding bonds refunded b y the reorganized district. The board o f the reorganized district, or the
I °°arlfs of districts receiving school buildings w ith an existing bonded debt shall constitute the board of
trustees for the original district having a bon ded indebtedness and the officers o f the reorganized or succes-
sor district shall be the officers for the original district. I f any original bon ds o f the reorganized district
, “sve been refinanced in any w ay, the state board o f education shall make the final determ ination as to
. Placement of the responsibility with the 1 or m ore boards o f education receiving the buildings as to their
responsibility in acting as the board o f trustees for the original district. T he board o f each district assigned
he responsibility as the board o f trustees for any bon ded indebtedness o f the d ivided district shall certify
®d order the levy of taxes for the bon d ed indebtedness in the name o f the original district.
Sec. 18. Any time after 3 years fo llow in g the reorganization o f a school district under this act, a district
receiving a building having an existing bon d ed indebtedness and assuming the responsibilities set forth in
i fc l0“ 1®> may assume the obligation o f the bon ded indebtedness incurred after D ecem ber S, 1932, o f
I „*jSC j ' building attached to its district under the provisions o f this act, and pay the sam e from the pro-
a debt retirement tax levy spread uniform ly over the territory o f the reorganized or successor district
jj ™ ™e doctors of the reorganized or successor district approve an increase in the lim itation on taxes for
ind S ’™ aD̂ scl’ ° ° l tax electors o f the district have approved the assumption o f such bon ded
territ ™ne/ S' Assumption Df the bon d ed indebtedness o f an original school district does not release the
■0 the7 ■ ^'e or'S*nal district from the final responsibility o f paying the obligation or rescind the increase
y M ™ ltation on taxes p ledged to the b on d issue or available to it in the original district, nor be construed
01c g. When the bonded indebtedness o f an original district has been so assumed, the board o f the
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reorganized or successor district shall certify and order the levy o f taxes for the bon ded indebtedness equiv
lent in terms o f m oney to those required b y the terms under w h ich the indebtedness was originally incura
and carry ou t all provisions o f the original bon d contract. T he election to assume the bonded indebted*
o f an attached district m ay b e held at any tim e after 3 years fo llow in g tire effective date o f reorganizi
w hen a proposal is p laced b e fore the school tax electors to increase the bon ded indebtedness of the«
b in ed district.
Sec. 19. T he board o f education o f a school district receiv ing an em ergency loan under the provisin
o f this act shall hold school fo r at least 180 days du iing the school year it received the loan and fora
su cceed ing school year as required by law or its m em bers shall b e subject to rem oval from the board id
section 253 o f A ct N o. 269 o f the P ublic A cts o f 1955, being section 340.253 o f the M ichigan Compiled Lai
Sec. 20. T he school em ergency loan revolving fund is created in the state treasury from which emerge®
loans shall b e m ade to school districts as p rovided in this act. T he state treasurer shall issue his warrantt
the fu nd fo r the am ount o f the loan. T he treasurer shall transfer repaym ents o f the loan to the general !m
T h ere is appropriated from the general fu nd to the sch oo l em ergency loan revolving fund the aim
$125,700.00.
Sec. 21. T h e loan provisions o f this act shall expire June 30, 1974.
This act is ordered to take im m ediate effect.
Approved, April 18, 1973
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MICHIGAN STATUTES
Michigan Compiled Laws
Annotated
340.69 Same; tuition and transportation of part of pupils to other
districts
See. 69. The board may use money in the general fund or funds
received from state appropriations for aid to school districts for the
purpose of paying tuition and transportation to another district or
districts of resident pupils, even though the grades in which such
pupils may be enrolled are maintained within the district. P.A.
1955, No. 269, § 69, Eff. July 1.
340.121 Same; other duties
Sec. 121. The board of any school district of the third class shall
have the powers and duties:
(d) Tuition payments to other districts. To use money in the gen
eral fund or funds received from state appropriations for aid to
school districts for the purpose of paying tuition and transportation
to another district of resident pupils, even though the grades in which
the pupils may be enrolled are maintained within the district.
3 4 0 . 1 8 3 Annexed territory
Sec. 183. Whenever territory shall be annexed to the city com
prising a school district of the first class, such territory, by such an
nexation, shall become and be part of the school district of that city.
P.A.1955, No, 269, § 183, Eff. July 1.
3 4 0 . 1 8 4 Same; entire school district, bonds
Sea 184. Whenever territory comprising an entire school district
is annexed to the city and becomes a part of the city school district,
the provisions of chapter 4 of part 2 of this a c t1 shall govern where
applicable with respect to the bonded indebtedness of either district
existing at the time of annexation: Provided, That the board of ed
ucation of a district of the first class may use any funds legally avail
able to retire the bonded indebtedness of the district, so annexed.
P.A.1955, No. 269, § 184, Eff. July 1.
1 Section 340.431 et seq.
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Sec. 185. Whenever territory constituting a portion of another
district is annexed to a city and the district from which such territory
is taken has outstanding bonded indebtedness, the provisions of chap
ter 5 of part 2 of this act1 shall apply relative to such bonded indebt
edness. P.A.1955, No. 269, § 185, Eff. July 1.
1 Section 340.461 et seq.
340.251 Superintendent of public instruction; office, qualifica
tions
Sec. 251. The superintendent of public instruction shall have gen
eral supervision of general instruction in all public schools and in all
state institutions that are educational in their character, as follows;
The university of Michigan, the Michigan state college of agriculture
and applied science, the Michigan school for the deaf, the Michigan
school for the blind, the boys’ vocational school, the girls’ training
school, the several Michigan home and training schools, and any
similar institution that may hereafter be created. He shall maintain
his office at the seat of the state government. He shall be a gradu
ate of a university, college or state normal school of good standing,
and shall have had at least 5 years’ experience as a teacher or superin
tendent of schools. P.A.1955, No. 269, § 251, Eff. July 1.
340.252 Same; duties
Sec. 252. It shall be the duty of the superintendent of public in
struction:
(a) State educational institution and governing boards. To visit the
state institutions mentioned above and meet with the governing boards
thereof from time to time;
(b) Deleted,
(c) School law observance, accounting by boards of education. To
require each board of education o r the officers thereof to observe the
laws relating to schools, to account for and pay over to the credit of
the school district all moneys illegally expended or otherwise disposed
of, and he shall have authority to compel such observance and account
ing by appropriate legal proceedings instituted in courts of competent
jurisdiction by direction of the attorney general;
(d) Audit of school district official records, and accounts. To ex
amine and audit the official records and accounts of any school district
340.185 Same; portion of school district, bonds
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and require corrections thereof when necessary, and to require an ac
counting from the treasurer of any school district when deemed nec
essary;
(e) Maintenance of educational facilities by school districts, safety,
health. To require all school districts to maintain school or provide
educational facilities for all children resident in such district for at
least the statutory period, and to require school boards to carry out
his recommendations relative to the safety of school buildings, equip
ment and appurtenances, including all conditions that may endanger
the health or life of the school children;
(f) Report to governor and legislature, contents. To prepare bien
nially and transmit to the governor, to be by him transmitted to the
legislature at each biennial session thereof, a report containing a state
ment of the general educational conditions of the state; a general
statement regarding the operation of the several state educational in
stitutions and all incorporated institutions of learning; and to present
plans for the improvement of the general educational system if in his
judgment it is deemed necessary. The report shall also contain the an
nual reports and accompanying documents of all state educational in
stitutions so far as the same may be of public interest, and tabulated
statements of the annual reports of the several school officers of the
school districts of the state, and any other matter relating to his office
which he may deem expedient to communicate to the legislature;
(g) Deleted.
(h) Welfare of public schools and educational institutions. To do
all things necessary to promote the welfare of the public schools and
public educational institutions and provide proper educational facili
ties for the youth of the state;
(i) Promotion of temperance. To promote in the public schools of
this state, in the normal colleges and universities of this state and
among adult groups, scientific instructions as to the physical, psycho
logical and sociological effects of alcohol and the benefits of temper
ance; to prepare and publish instructional and informational mate-
rials; and to promote temperance by such other means as may seem
desirable; and
(j) Uniform child and finance accounting records. To prescribe ap
propriate uniform child and finance accounting records for use in the
school districts of this state, and to make such rules and regulations:
or̂ their adoption as he may deem necessary. P.A.1955, No. 269,
8 252, Eff. July 1, as amended P.A.1965, No. 140, § 1, Eff. March 31.
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340.252a Same; appointment of instructors; rules for their
management
Sec. 252a. The superintendent of public instruction may set a time
and appoint proper instructors for a state teachers’ institute and for
institutes in the several counties of the state, and make such rules and
regulations for their management as he deems necessary. P.A.1955,
No. 269, § 252a, added by P.A.1965, No. 140, § 1, Eff. March 31,1965.
340.252b State plan f o r special education; noncomplying special education pro
g ram s and serv ices
Establishment of plant rulesi submission to legislature
Sec. 252b. (1) For the 1973-74 school year and thereafter the state board of
education shall:
(a) Develop, establish and continually evaluate and modify in co-operation with
intermediate school districts, a state plan for special education which shall pro
vide for the delivery of special education programs and services designed to de
velop the maximum potential of every handicapped person. The plan shall co
ordinate all special education programs and services.
(b) Require each intermediate school district to submit a plan pursuant to sub
division (a) of section 298c,i in accordance with the state plan and approve the same.
(c) Promulgate rules setting forth the requirements of the plans and the pro
cedures for submitting them.
(d) A preliminary state plan shall be submitted to the legislature on or before
July 1, 1972.
(e) The final state plan shall be submitted to the legislature on or before
March 1, 1973, including recommendations for funding special education programs
and services.
Approval of noncomplying plans
(2) For the 1973-74 school year and thereafter, If a local school district claims
the existence of an emergency, due to extreme financial conditions because of in
sufficient operating funds or due to a severe classroom shortage and which emer
gency the local district claims renders it unable to provide special education pro
grams and services in compliance with section 771a,2 it shall apply, in writing, to tte
state board no later than July 1 of the particular school year for approval to provide
special education programs or services which do not comply with section 771a.
Application for approval, content*i ground* for approval!
filing date exteneion
(3) In its application the local school district shall demonstrate the need to pro
vide noncomplying special education programs and services and shall include
proposed programs and services it can provide and the efforts to be undertfl
to alleviate the emergency. I f the state board finds an emergency exists in
local school district for such school year, the state board may approve the P
viding of noncomplying special education programs or services and prescribe
ditions therefor. The state board may extend the filing date for good cause.
Notice of noncompllance) direction to comply ,,
(4) If the state board determines a local school district is not providing
education programs and services in compliance with section 771a, and the .
school district has not obtained prior approval from the state board, the
board shall notify the local school district, in writing, of the noncompliance,
less the local school district submits proof of compliance, or of an unfore (
emergency, within 30 days after receipt of the notice, the state hoard shall a
the intermediate district of which the local school district is a constituent to P
57aa
vide complying programs or services. The state board shall direct the intermediate
district to provide only those programs or services which the state board deter
mined are not in compliance with section 771a. 1
Funding; of programs or services directed
(5) Special education programs or services which the state board directs an in
termediate district to provide shall be funded as if provided by the local school
district and the local school district shall contribute to the intermediate district
the unreimbursed cost of the programs or services.
P.A.1955, No. 269, § 252b, added by P.A.1971, No. 198, § 1, E ff. July 1, 1972.
1 Section 340.298c.
2 Section 340.771a.
For effective date provision of P.A.1971,
No, 198, see note following section 340.10.
34 0. 25 3 Same; order of removal of board member; record; set
t in g aside order of removal
Sec. 253. The superintendent of public instruction may remove
from office, upon satisfactory proof and after at least 10 days’ notice
to the party implicated, any member of any board who shall have il
legally used or caused to be used or disposed of in any manner what
ever any of the public moneys entrusted to his charge, or who shall
persistently and without sufficient cause refuse or neglect to discharge
any of the duties of his office, and, in case of such removal, it shall be
the duty of the said superintendent to have recorded in the office of
the county superintendent of schools the order for such removal, and
such record of such order so entered or a certified copy thereof shall
be prima facie evidence in all courts and places of jurisdiction of the
regularity of such proceedings for removal, and said superintendent
shall file a similar copy of the proceedings in the records of his office.
The party so removed may, within 30 days after such removal, insti
tute proceedings before a court of competent jurisdiction for the set
ting aside of such order for removal from office. If no such proceed-
mgs are instituted within said 30 days, or, if such proceedings to sec
aside such order for removal shall be discontinued or dismissed, the
said order for removal from office shall stand and shall not be subject
to attack by any legal proceedings thereafter. P.A.1955, No. 269, §
253, Eff. July 1.
3 4 0 . 3 0 2 a Intermediate school districts; consolidation, election,
procedure; accounts, contracts
Sec. 302a. Two or more adjoining intermediate school districts
may combine to form a single intermediate school district when the
^organization has been approved by a majority of the electors voting
°u the question of the constituent districts of each intermediate dis-
58aa
trict voting on the question in the annual elections of their constitu
ent districts. The question of combining intermediate districts may
be submitted by a resolution of the boards of the intermediate dis
tricts meeting in joint session, if approval of the election has been
given by the state board of education. The question shall be submit
ted when petitions signed by a number of qualified electors of the
constituent school districts of each intermediate school district, who
are registered to vote in the city or township where they reside, equal
in number to not less than 5 % of the number of school memberships
of the constituent districts of that intermediate district have been
filed with the secretary of the board of any one of the intermediate
school districts. On receipt of sufficient petitions the secretary shall
apply for approval to the state board of education within 30 days and
he shall cause the question to appear on the ballot of the next annual
school election after such approval has issued. The ballots shall be
furnished by the board of each intermediate school district for its
constituent districts and shall be in substantially the following form:
“Shall the intermediate school districts o f ............ ............... . and
.......................................counties be organized as a single intermediate
district?
Yes ( )
No ( ) ”
The provisions of this chapter shall become effective in the combined
intermediate districts 30 days after the date of the last election in a
constituent school district provided that the consolidation has been
approved by a majority of the electors voting on the question in each
•of the participating intermediate school districts, and thereafter the
intermediate district shall be considered a single intermediate district
subject to the provisions of this chapter. The members of the boards
of the original intermediate district shall act as an interim board until
a board of the combined intermediate district has been chosen, and
shall possess all the powers and duties of a board as provided in this
chapter. The person chosen by the interim board as superintendent
shall serve only until his successor has been chosen by the elected
board. The secretary of the board of the intermediate district having
the largest number of children in membership in its constituent dis
tricts at the time of reorganization shall call the members of the in
terim board into session for the purpose of organization, on the day
the reorganization becomes effective, unless that day is a Sunday or
holiday, in which case it shall be the next succeeding day not a Sun
day or a holiday. The secretary of the interim board shall take all
necessary steps to provide for the election of a board of the reorgan-
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ized intermediate district in accordance with the provisions of sec
tions 294b to 294h of this act.1 At the first election there shall be
elected 3 members of a board for 6 years, 2 for 4 years and 2 for 2
years. At least 3 members shall be from 1 district if there are 2 in
termediate districts that have joined together, at least 2 from each
district if 3 districts joined and at least 1 member from each district
if there are 4 or more intermediate districts joined together. There
after their successors shall be elected biennially for a term of 6 years.
The time from the date of election to the next July 1 shall be consid
ered 1 year. The combined intermediate district shall operate as a
single intermediate district from the effective date of the reorgani
zation. Within 10 days following the reorganization, all accounts of
each intermediate school district becoming a part of the reorganized
district shall be audited in accordance with provisions established by
the interim board. The provisions of the contracts of the superin
tendents in force as of the effective date of reorganization shall con
tinue in effect to time of termination except as to positions as super
intendents. P.A.1955, No. 269, § 302a, added by P.A.1962, No. 190,
§ 1, Eff. March 28, 1963, as amended P.A.1964, No. 290, § 1, Eff.
Aug. 28.
1 Sections 340.294b~340.294h.
3 4 0 . 3 0 3 a Same; annexation; board members
Sec. 303a. Any intermediate school district may be annexed to
another intermediate school district whenever the board of the an
nexing district by resolution has determined, and a majority of the
registered and qualified school electors of the intermediate district
becoming annexed, voting on the question at an annual or special
election in the constituent districts, has approved the annexation. If
the annexing intermediate district has adopted the provisions of sec
tions 307a to 324a of this act,1 the electors of the constituent districts
°f the intermediate district to be annexed must vote to accept those
provisions. The vote on the question shall be by printed or duplicated
ballot furnished by the board of the district to be annexed. Before
the election is held, the board of the annexing district shall obtain
the approval of the state board of education of the proposed annexa
tion. Within 10 days of the holding of such an election, each con
stituent district shall file the result with the secretaries of his respec
tive intermediate district, and 5 days thereafter such secretaries shall
*e the result with the secretaries of the boards of the annexing dis
trict. Within 15 days after the election approving the annexation,
60aa
the members of the board of the annexed district shall account to the
board of the annexing district for the funds and property in their
hands and shall turn over the same to the board of the annexing dis
trict. All property and moneys belonging to the annexed district
shall become the property of the annexing district and all outstand
ing indebtedness of the annexed district shall become the liability of
the annexing district. Upon receipt of the funds and property by the
board of the annexing district, the members of the board of the an
nexed district shall be released from liability therefor and their
offices terminated. The effective date of the annexation shall be
the latest date on which an election was held in a constituent district
of the annexed intermediate district. The secretary of the board of
the annexing district shall give written notice of the annexation to
the state board of education within 15 days of the annexation. With
in 30 days after the effective date of annexation, the board of the
annexing district shall appoint 2 tax electors of the constituent dis
tricts of the annexed district to membership on the board of the re
organized district, who shall serve until July 1 following the next
biennial election, and notification of the appointments shall be filed
with the state board of education. If the appointments are not made
within the 30 days, the state board of education shall make the ap
pointments. At the next biennial election, members of the board shall
be elected to the number and for the terms as required in section 302a
of this chapter.2 The terms of the members of the board whose
terms have not expired shall determine the terms of the additional
members to be elected. P.A.1955, No. 269, § 303a, added by P.A.1962,
No. 190, § 1, Eff. March 28,1963.
1 Section 340.307a-340.324a.
2 Section 340.302a.
340.330 A d option o f section s 343.320 to 340.330a; rescission
Sec. 330. Sections 330 to 330u i shall become effective whenever a majority of tie
registered electors of an intermediate district, present and voting in any one year,
at the several annual or special school elections in the constituent districts, vote as
provided in section 330a - to adopt the provisions of these sections. The effect oi
the provisions of these sections may be rescinded by the same process.
I*.A. 1033, No. 209, § 330 added by P.A.19CS, Xo. 320, § 1, Imd. Eff. July 3, 3028.
i Sections 2-10.330 to 310.330u.
» Section 34i).33GCk.
61aa
343.330a A doption o f section s 340.330 to 34 0 .33 0c ; su bm ission to e le c to rs ; date o f
election , n otice
Sec. 3 3 0a . The question of adopting the provisions of sections 2 3 0 d to 3 3 0 a -
may be submitted to the school electors of an intermediate district at the annual
election or at a special election held in each of the constituent districts. The
interm ediate district board shall determine the date of such election and shall give
notice to the boards of constituent districts at least GO days in advance of the
election that the question of adoption of these sections shall be submitted to the
doctors of the district on the date specified. When the question is presented at
the annual school elections of constituent districts and any one or more constitu
ent districts do not hold annual school elections, the intermediate district board
shall call a special election in such districts to be hold on the same date as that
of the annual school elections. When the intermediate district board determines
that the question of adopting sections 3 3 0 d to 3 3 0 u shall be submitted to the elec
tors o f the intermediate district at a special election in all constituent districts,
tha election shall be hold and conducted by the same election officials and in the
same manner as special elections of the constituent districts are conducted, ex-
, «!Pt that ail districts shall vote in the manner of registration districts.
P.A.1955, No. 209, § S30a, added by P.A.10G3, Xo. 320, § 1, Imd. E ff. July 3, 1968.
'Sections 340.330d to 340.33u.
340.355 Discrimination; race, color, intellectual progress
Sec. 355. No separate school or department shall be kept for any
person or persons on account of race or color. This section shall not
i be construed to prevent the grading of schools according to the in
tellectual progress of the pupil, to be taught in separate places as may
be deemed expedient. P.A.1955, No. 269, § 355, Eff. July 1.
340 .359 Nonresident children of taxpayers; tuition and trans
portation
Sec. 359. When nonresident pupils, their parents or guardians,
pay school taxes in said district and such pupils are admitted to
schools in the district, the amount of such total current school taxes
shall be credited on their tuition and transportation in a sum not
to exceed the amount of such tuition and transportation and they
■ shall be required to pay tuition and transportation for only the dif
ference therein. P.A.1955, No. 269, § 359, Eff. July 1.
340.361 Constitutions and civil government, instruction
Sec. 361. In all public, private, parochial and denominational
, ^ools within the state of Michigan, there shall be given regular
courses of instruction in the constitution of the United States, in the
constitution of the state of Michigan, and in the history and present
form of civil government of the United States, the state of Michigan,
the political subdivisions and municipalities of the state of Michi
gan. P.A.1955, No. 269, § 361, Eff. July 1.
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3 4 0 . 4 6 1 Transfer of territory between districts; approval
Sec. 461. The county board of education may, in its discretion,
detach territory from 1 district and attach it to another when request
ed to do so by resolution of the board of any district whose boundaries
would be changed by such action, or when petitioned by not less than
% of the resident owners of the land to be ti'ansferred. The county
board of education shall take final action in regard to the resolution
or petition within a period of 60 days of the receipt of the resolution
or petition. Only territory contiguous to a district may be transferred.
Whenever the latest available taxable valuation of the area to be de
tached is more than 10% of the latest available taxable valuation of
the entire school district from which it is to be detached, the action of
the county board of education directing such detachment shall not be
valid unless approved, at an annual or special election called for that
purpose in the district from which the detachment is to be made, by
an affirmative vote of a majority of the school tax electors of the dis
trict, voting thereon, P.A.1955, No. 269, § 461, Eff. July 1, as amend
ed P.A.1957, No. 135, § 1, Eff. Sept. 27.
3 4 0 . 4 6 2 Same; notice of hearing, posting, publication.
Sec. 462. The county superintendent of schools shall give at least
10 days’ notice of the time and place of the meeting of the county board
of education and of the proposed alteration in school district bound
aries to be considered at said meeting, by posting such notice in at
least 5 public places in each of the districts whose territory may be
affected by such alteration and by publication at least once prior to
such meeting in a newspaper of general circulation in the territory of
the affected districts. P.A.1955, No. 269, § 462, Eff. July 1.
3 4 0 . 4 6 3 Same; districts in more than 1 county
Sec. 463. Whenever the territory of districts the boundaries of
which would be affected by the proposed alteration extends into °r
more counties, or whose boundaries as a result of the proposed altera
tion would extend into 2 or more counties, the county boards of e u
cation of all such counties shall meet jointly and sit as a single boa
to consider and act upon the request for the transfer of territory,
resolution or petition for the transfer of territory, as set forth in sec
tion 461 of this act,1 may be addressed to and filed with the coun
board of any one of such counties and it shall then be the duty o
county superintendent of schools of such county to call the joint mee
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mg of the affected county boards and to give the notice of such meet
ing as set forth in section 462 of this act.2 Action on the resolution
or petition for transfer of territory shall be taken only at a meeting
attended by at least a quorum of each of the county boards. At such
joint meeting of the county boards of education, they shall elect 1 of
their members chairman and another secretary thereof. P.A.1955,
No. 269, § 463, Eff. July 1, as amended P.A.1957, No. 135, § 1, Eff.
Sept. 27; P.A.1961, No. 162, § 1, Eff. Sept. 8.
1 Section 340.461.
2 Section 340.462.
34 0. 46 4 Same; maps showing boundaries and alteration
Sec. 464. When the county board of education or the joint county
boards of education have approved alterations in the boundaries of
school districts, such board or joint boards shall cause a map to be
prepared showing in detail the boundaries of the affected districts be
fore the alteration in boundaries and the boundaries of territory an
nexed or detached. A copy of such map bearing the certification of
the county superintendent of schools or the secretary of the joint
boards shall be filed with the secretary of each affected district and
with each affected township supervisor or city assessor. P.A.1955, No.
269, §464, Eff. July 1.
340.465 Same; effective date; taking of property, accounting,
adjournment of hearing
Sec. 465. In the resolution ordering the transfer of property, the
county board or joint boards shall determine the effective date of such
ansfer, which shall not be less than 10 days from the date of the reso-
u ion, and shall determine whether any personal property of a school
sch nfC -S *? transferred and, when any real property owned by a
oo district is transferred to another district, determine an equita-
o Pa;> ment for the taking of such property. The board or joint boards
y req-u*re an accounting from the affected districts and, for the
o r raâ nS its determination, may adjourn from time to time
in;„+Vect to caii the president of the board or chairman of the
mt boards. P.A.1955, No. 269, § 465, Eff. July 1.
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340.466 Same; effect on indebtedness; certification of taxes; collections
Sec. 466. W h en ever te rr ito ry is d eta ch ed fr o m a d is tr ic t w h ich has a bonded
indebtedness in cu rred a fte r D ecem b er 8, 1932, an d tra n s fe rred to another district |
su ch te rr ito ry sh a ll rem ain as p a rt o f th e d is tr ic t fr o m w h ich detached for the
p u rpose o f lev y in g the d ebt retirem en t ta x fo r su ch b on d ed indebtedness until such
bon ds ha ve been redeem ed o r s u ffic ie n t fu n d s are a v a ila b le in the d ebt retirement
fu n d fo r such purpose, bu t sh all n o t be p art o f the d is tr ic t from w h ich detached *
fo r the p u rpose o f an y subsequent bon d issue, n or sh all an y p ortion o f such territory j
so d eta ch ed be p art o f the d is tr ic t from w h ich d etach ed fo r an y tax levy hereafter1
im posed fo r the p u rpose o f an y p r io r bon ded indebtedness c rea ted o r assumed at i ;
tim e w hen such p ortion o f su ch te rr ito ry so d eta ch ed w as n o t a p art o f a district
o r te rr ito ry ap p rov in g o r assum ing such bon ded indebtedness. Such territory shall 1
be a p a rt o f the d is tr ic t to w h ich tra n sferred fo r all o th er purposes. Such ter- (
r ito ry shall not be su b je c t to a bond d ebt retirem en t ta x levy fo r bonded indebted
ness o f the d is tr ic t to w h ich tra n sferred e x is t in g a t the t im e o f transfer until
the bon ded in d ebted n ess o f th e d is tr ic t from w h ich tra n sferred existing at the
tim e o f tra n sfe r h a s been retired o r su ffic ie n t fu n d s are a v a ila b le and earmarked
in th e d eb t retirem en t fu n d fo r su ch p urpose, nr w h en ever th e b oa rd o f education 1
o f th e d istr ic t to w h ich the p rop erty is tra n sferred , by reso lu tion , effective for a
p eriod o f n ot m ore than 3 years, ex em p ts such p rop erty from su ch debt levy. The
s ch oo l o ff ic ia ls o f the d is tr ic t to w h ich su ch te rr ito ry is tra n sferred shall certify
the requ ired debt retirem en t levy fo r the bon ds o f the d is tr ic t from which such
te rr ito ry has been d eta ch ed , and th e te rr ito ry o v er w h ich i t is to be spread, to the
p rop er ta x in g o f f ic ia ls w h en c e rt ify in g the oth er ta x es to be lev ied by said district,
and the tax co lle c t in g o f f ic ia ls sh a ll rem it the co lle ct ion s th ereon along with other
ta x co lle ct ion s to the d is tr ic t to w h ich the p ro p e r ty is tra n sferred , and the officials
o f sa id d is tr ic t sh a ll im m ed ia te ly tra n sm it such co lle ct ion s to the district front
w h ich the te rr ito ry w as taken.
P aym en t o f p ro ra ta sh are b y tra n s fe re e d istr ic t, p roced u re
T h e d is tr ic t to w h ich the land h a s been tra n s fe rred m ay p a y to the district from
w h ich th e land has been d eta ch ed the p resen t va lu e o f the p ro rata bonded in
d ebtedn ess o f the te rr ito ry w h ich has been thus d etach ed . In su ch event the county
b oa rd o f ed u cation sh all c e r t ify to th e m u n icip a l fin a n ce com m ission the fad
o f the tra n sfer , the d escrip tion o f the te rr ito ry th u s tra n sferred , the bonded in
debtedn ess o f the d is tr ic t fro m w h ich th e te rr ito ry h a s been detach ed, the assesses
v a lu a tion o f th e d is tr ic t fro m w h ich th e te rr ito ry h a s been detach ed , the assessed
v a lu a tion o f the te rr ito ry thus d etach ed , an d su ch o th er in form ation as the »
n icip a l fin a n ce com m ission m a y requ ire . T h e m u n ic ip a l fin a n ce commission shal
th ereupon d eterm in e the p ro ra ta sh are o f the bon ded indebtedness o f the territory
thus d eta ch ed to the d is tr ic t fro m w h ich the te rr ito ry has been detached in *c'
co rd a n ce w ith sou nd bon d a ccou n tin g p rin cip les . T h e m u n icip a l fin an ce commissi®
sh a ll th ereupon ce r t ify to the cou n ty b oa rd o f ed u ca tion the am ount thus deter
m ined, an d the cou n ty b oa rd o f ed u ca tion sh all c e r t ify such am oun ts to the districts
a ffe c ted . T h e d is tr ic t to w h ich the te rr ito ry h a s been tra n sferred m ay pay to 1 *
d is tr ic t from w h ich the te rr ito ry has been d eta ch ed such sum . S a id settlement o
the b on d ed indebtedness sh a ll be m ade on the state equ alized va lu ation in the ye*
o f tra n sfer , and the d is tr ic t rece iv in g su ch m oneys sh all ap p ly the same in accoro
an ce w ith the term s and ten or o f the bon d issue. A n y tra n s fe r m ade after Wr
tem ber 1 in an y g iven y e a r sh a ll be deem ed a p a r t o f th e terr itory from wn
detach ed f o r the p u rpose o f the su cceed in g D ecem b er ta x levy , and the settleme
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in such case shall be m ad e a fte r the D ecem b er ta x lev y in the y e a r o f tra n sfer .
Upon settlement o f the bon ded indebtedness by the d is tr ic t to w h ich the te rr ito ry
has been transferred , then the te rr ito ry shall becom e su b ject to the bond d ebt
retirement tax levy fo r bon ded indebtedness o f the d is tr ic t to w h ich tra n sferred
existing at the tim e o f tra n sfe r . F o r the p u rpose o f m ak in g su ch settlem ent, the
district to which the te rr ito ry is a tta ch ed m ay use up to 1 5 % o f an y state a id m on ey
in any one year.
Amended by P.A.1969, N o. 98, § 1, Im d. E ff . J u ly 24.
340,466a Same; millage levy
Sec. 466a. W hen te rr ito ry is a tta ch ed to a d istr ict, e f fe c t iv e p r io r to S ep tem ber 1
o( any year, school op era tion a l m illage fo r th a t y ea r sh a ll b e lev ied on p rop erty
in such territory by the a tta ch in g d istr ict. W h en te rr ito ry is a tta ch ed to a d is tr ic t
effective on or a fter S ep tem ber 1 o f an y y ea r , sch oo l o p era tion a l m illa g e f o r th at
year shall be levied on p rop erty in su ch te rr ito ry by the d is tr ic t fr o m w h ich the
territory is detached. T h e sch o o l o f f ic ia ls o f the d istr ic t en titled to lev y s ch o o l op era
tional millage w ith in the tra n sfe rred te rr ito ry , sh all c e r t i fy the sch oo l op era tion a l
millage, and the territory o v e r w h ich it is to be spread, to the p rop er ta x in g o ff ic ia ls
when certifying the ad v a lorem ta x es to be lev ied by the d is t r ic t
U . 1955, No. 269, § 466a, a d d ed b y P .A .1967, N o. 114, § 1, Im d . E f f . J u n e 27, 1967.
340.467 Same; appeal to state board of education
Sec. 467. Any one or more resident owners of land considered for
transfer from 1 district to another, or the board of any district whose
territory is affected, may appeal the action of the county board of edu
cation or joint boards in transferring such land, or the failure to trans
fer such land, or the action taken relative to the accounting determina
tion, to the state board of education within 10 days after such action
or determination by the county board of education or the joint boards,
if the county board of education or the joint boards fail to take action
within the time limit prescribed in section 461,1 the appeal may be
ftade to the state board of education within 10 days following the
termination of the period. Such appeal shall have the effect of hold-
the effectiveness of the resolution from which appealed in abey-
ĉe until the appeal is acted upon by the state board of education.
The state board of education is hereby empowered to consider such
appeals and to confirm, modify or set aside the order of the county
ward of education or the joint boards and its action on any such ap-
M shall be final. P.A.1955, No. 269, § 467, Eff. July 1, as amended
P'A.1957, No. 135, § 1, Eff. Sept. 27.
1 Section 340.461.
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3 4 0 . 4 6 8 Boundary change; students in twelfth grade; continn-
ance without tuition
Sec. 468. In any case where the boundaries of a school district are
changed, students in the twelfth grade at the time of the change or
entering the twelfth grade at the beginning of the school year immedi-
ately following the change shall be allowed to continue attending school
in the district which they attended before the change without the pay
ment of tuition. P.A.1955, No. 269, § 468, added by P.A.1965, No. 263,
§ 1, Imd. Eff. July 21,1965; P.A.1965, No. 375, § 1, Imd. Eff. July 23,
1965.
340.569 Teachers’ contracts, contents, filing, termination
Sec. 569. The board of every district shall hire and contract with
such duly qualified teachers as may be required. All contracts with
teachers shall be in writing and signed by a majority of the board in bo-
half of the district, or by the president and secretary, or by the super
intendent of schools or his designee when so directed at a meeting oi
the board. The contracts shall specify the wages agreed upon and in
primary school districts shall require the teacher to keep a correct list
of the pupils, grading and the age of each, attending the school, and the
number of days each pupil is present, the aggregate attendance and
percentage of attendance, and to file the same with the superintendent
of the intermediate district and a true copy thereof with the secretary
of the board at the end of the school year, and no teacher shall be en
titled to receive his last payment for his services until the report shall
be filed. The contract shall be filed with the secretary and a duplicate
copy of the contract shall be furnished to the teacher. No contract with
any person shall be valid unless such person shall hold a legal certificate
of qualification at the time the contractual period shall begin, and all
such contracts shall terminate if the certificate shall expire by limita
tion and shall not immediately be renewed, or it shall be suspended or
revoked by proper legal authority. Any board after a teacher has been
employed at least 2 consecutive years by the board may enter into a
continuing contract with such teacher if the teacher holds a perma
nent or life certificate. A continuing contract is a contract which shall
remain in full force and effect, as provided in the rules and regulations
of the board, until the teacher resigns, elects to retire, is retired, oris
dismissed for reasonable and just cause after a fair hearing. P.A.19fo
No. 269, § 569, Eff. July 1, as amended P.A.1965, No. 14, § 1, Eff-
March 31,1966.
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,340.575 School term, minimum
Sec. 575. T h e b oa rd o f ev ery d is tr ic t sh a ll d eterm in e th e length o f th e sch oo l
term. The m inim um n u m b er o f d a y s o f stu d en t in s tru ction s sh a ll b e n o t less than
180. Any d istrict fa i lin g to h o ld 180 d a y s o f student in s tru ction sh a ll fo r fe i t Mgpth
ot its total state a id a p p rop r ia tion f o r ea ch d a y o f su ch fa ilu re . N ot la te r than
August 1, the b oa rd o f ev e ry d is tr ic t sh a ll c e r t i fy to th e d epa rtm en t o f ed u cation
the number o f d ays o f s tu d en t in s tru ction in th e p rev iou s sch oo l y ea r . I f the
district did not h o ld a t lea st 180 d ays o f stu d en t in s tru ction , th e d ed u ction o f
state aid shall be m ad e in th e fo llo w in g fis ca l y e a r fr o m the f ir s t p a y m en t o f sta te
aid. Days lost beca u se o f s trik es o r teach ers con fe ren ces sh a ll n o t be coun ted
as a day o f student in s tru ction . T h e sta te b oa rd o f e d u ca tion sh all esta b lish ru les
for the im plem entation o f th is section .
Amended by P .A .1967, N o . 237, $ 1, E f f . N ov . 2 ; P .A .1970, N o. 72, § 1, Im d . E ff .
July 12.
3 4 0 .5 8 2 Nonresident pupils, tuition; per capita cost
Sec. 582. The board of any district may admit to the district
school nonresident pupils and shall determine the rates of tuition of
such pupils and shall collect the same. Tuition for grades kindergarten
to 6, inclusive, shall not exceed 25% more than the operation cost per
capita for the number of pupils in membership in grades kindergarten
to 12, inclusive. Tuition for grades 7 to 12, inclusive, shall not exceed
121/2% more than 115% of the operation cost per capita for the num
ber of pupils in membership in grades kindergarten to 12, inclusive.
In districts not maintaining grades above grade 8, the tuition shall not
exceed 25% more than the operation cost per capita for the number
of pupils in membership in grades kindergarten to 8, inclusive. The
operation costs and membership so used shall be those of the pre
ceding fiscal year. The per capita cost herein referred to shall not
be interpreted to include moneys expended for school sites, school build
ing construction, equipment, payment of bonds, or such other purposes
as shall be determined by the superintendent of public instruction not
Properly included in operation costs. P.A.1955, No. 269, § 582, Eff,
July 1, as amended P.A.1958, No. 195, § 1, Eff. Sept. 13.
340,583 Grades, schools, departments, courses of study
Sec. 583. Every board shall establish and carry on such grades,
schools and departments as it shall deem necessary or desirable for
be maintenance and improvement of the schools; determine the
courses of study to be pursued and cause the pupils attending school
ln SUch district to be taught in such schools or departments as it may
eem exPedient: Provided, That a primary district shall not operate
any ^des above the eighth. P.A.1955, No. 269, § 583, Eff. July 1.
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3 4 0 . 5 8 9 Attendance areas
Sec. 589. Every board is authorized to establish attendance areas
within the school district. P.A.1955, No. 269, § 589, Eff. July 1.
3 4 0 . 7 8 1 Physical education; establishment of courses in public
and normal schools
Sec. 781. There shall be established and provided in all public
schools of this state, and in all state normal schools, health and physi
cal education for pupils of both sexes, and every pupil attending such
schools of this state so far as he or she is physically fit and capable of
doing so shall take the course in physical education as herein pro
vided. P.A.1955, No. 269, § 781, Eff. July 1.
340.782 Same; instructors, equipment; sex hygiene; birth con
trol; excuse from attendance
Sec. 782. It shall be the duty of boards in all school districts having
a population of more than 3,000 to engage competent instructors of
physical education and to provide the necessary place and equipment
for instruction and training in health and physical education; and
other boards may make such provision: Provided, That nothing in
this chapter shall be construed or operate to authorize compulsory
physical examination or compulsory medical treatment of school
children. The board of any school district may provide for the
teaching of health and physical education and kindred subjects in the
public schools of the said districts by qualified instructors in the
field of physical education: Provided, That any program of instruc
tion in sex hygiene be supervised by a registered physician, a regis
tered nurse or a person holding a teacher’s certificate, qualifying
such person as supervisor in this field: Provided, however, That it is
not the intention or purpose of this act to give the right of instruction
in birth control and it is hereby expressly prohibited to any person to
offer or give any instruction in said subject of birth control or offer
any advice or information with respect to said subject: Provided
further, That any child upon the written request of parent or guardian
shall be excused from attending classes in which the subject of sex
hygiene or the symptoms of disease is under discussion and no penal
ties as to credits or graduation shall result therefrom. P.A.1955, No-
269, § 782, Eff. July 1.
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340.789 D e f in i t i o n
Sec. 789. Sex ed u cation is the p rep a ra tion fo r p erson a l re la tion sh ip s betw een
the sexes by p rov id in g a p p rop ria te ed u ca tion a l op p ortu n ities d esigned to he lp the
individual develop un derstan din g, acceptan ce , resp ect a n d tru st f o r h im se lf and
others. Sex ed u cation in c lu d es the k n ow led g e o f p h y sica l, em otion a l an d soc ia l
growth and m atu ration , an d u n derstan d in g o f the in d iv id u a l needs. I t in v o lv es an
examination o f m an ’s an d w om a n ’s ro les in soc iety , h o w they re la te an d rea ct to
supplement each other, the resp on sib ilit ies o f each to w a rd s the o th er th rou g h ou t
life and the d evelopm ent o f resp on sib le use o f hum an se x u a lity as a p os itiv e and
creative force.
P.A.1955, No. 269, § 789, added by P.A.1968, N o. 44, § 1, Eff. N ov. 15, 1968.
P.A.1968, N o . 44 , b e c a m e l a w w i t h o u t t h e
governor’ s a p p r o v a l M a y 2 3 , 1968 .
340 .887 Textbooks; approved list; contract with superintendent
of public instruction, terms
Sec. 887. (1) No board or school official in any school district in
this state shall purchase, procure by exchange, adopt or permit to be
used in the schools of any such district any school textbook which is
not listed with the superintendent of public instruction as hereinafter
provided. Any person, firm or corporation desiring to offer school
textbooks for adoption, sale or exchange in the state of Michigan shall
file, when requested, with the superintendent of public instruction,
copies of all such textbooks, together with a sworn statement of the
usual list price, the lowest net wholesale price and the lowest exchange
price at which said book is sold or exchanged for an old book on the
same subject of like grade and kind but of a different series. No text
book shall be listed by the superintendent of public instruction unless
the person, firm or corporation offering the same shall enter annually
into a written contract, which shall become effective as of January 1
and shall remain in effect for a period of 1 year from such date, with
the superintendent of public instruction, acting on behalf of the state
of Michigan and the school districts thereof, which contract shall em
brace the following terms and conditions:
(a) That said person, firm or corporation will furnish any of the
books listed in said statement, and in any other statement subsequent
ly filed by him, during the period of the contract, to any such district
°r any school corporation in the state of Michigan at the lowest price
contained in said statement, and that said prices shall be maintained
uniformly throughout the state;
(b) That the prices, as set forth in said statement, shall be auto-
matically reduced in the state of Michigan whenever reductions are
made elsewhere in the United States, so that at no time shall any book
so *̂ecl and listed be sold or offered for sale by such person, firm or
corporation in the state of Michigan at higher net prices than are re-
70aa
ceived for such book elsewhere in the United States, and regardless
of whether such book is so sold or offered for sale elsewhere in ac
cordance with the terms of a contract or otherwise;
(c) That all textbooks offered for sale, adoption, use or exchange
in the state of Michigan shall be at least equal in quality to those re
quested to be deposited in the office of the superintendent of public
instruction as regards paper, binding, printing, illustrations, subject
matter, and any and all other particulars affecting the value of such
textbooks;
(d) That in case any abridged or special edition of any of the books
so listed by any person, firm or corporation is prepared thereby and
offered for sale elsewhere in the United States at lower wholesale
prices than the net wholesale price of said book or books according to
the statement filed with the superintendent of public instruction, said
person, firm or corporation shall file a copy of such special edition
when requested, together with the price therefor, with the superin
tendent of public instruction, and shall sell and offer the same for sale
for use in the public schools of the state of Michigan at the lowest net
prices at which said book is sold or offered for sale elsewhere in the
United States;
(e) That the person, firm or corporation shall not enter into any
understanding, agreement or combination to control the prices of
school textbooks or to restrict competition in the sale thereof for use
in the public schools in the state of Michigan;
(f) That the superintendent of public instruction may, if he ascer
tains at any time that any person, firm or corporation listing books
with him as herein provided is selling or offering for sale any such
book or books elsewhere in the United States at lower prices than
those for which said book or books are sold or offered for sale in the
state of Michigan, cancel all filings on the part of any such person, firm
or corporation, and remove from the list hereafter referred to all
books sold or offered for sale by such person, firm or corporation.
3 8 8 . 3 7 1 Civics courses in high schools; prerequisite to diploma!
students in military service
Sec. 1. In all Michigan high schools, offering 12 grades of work, a
1 semester course of study of 5 recitation periods per week or the
equivalent thereof shall be given in civics, said course covering the
form and functions of our federal and state governments and of coun
ty, city, township and village governments. Throughout the course
71aa
the rights and responsibilities of citizens shall be stressed. No diploma
shall be issued by any high school to any student unless such student
shall have successfully completed said course: Provided, That such
civics course shall not be a graduation requirement for any high school
student who has enlisted or been inducted into military service. As
amended P.A.1951, No. 224, § 1, E f f . Sept. 28; P.A.1957, No. 27, § 1,
Eff. Sept. 27.
3 8 8 .6 81 Reorganization of school districts; definitions
Sec. 1. A s used in this act:
(a) “Reorganization of school districts” means the formation of new
school districts, the alteration of boundaries of established school dis
tricts, and the dissolution or disorganization of established school dis
tricts through or by means of any one or combination of the methods
as set forth in this act.
(b) “State committee” means the state committee for the reorgani
zation of school districts created in this act.
(c) “Intermediate committee” means the committee for the reor
ganization of school distric ts created in this act.
(d) “Plan of reorganization” means a concrete proposal for read
justment and realignment of the boundaries of school districts within
an intermediate school district area.
(e) “Non-high school district” means a school district presently
operating less than a kindergarten through twelfth grade program.
(f) “School code” means Act No. 269 of the Public Acts of 1955, as
amended, being sections 340.1 to 340.984 of the Compiled Laws of 1948.
P.A.1964, No. 289, § 1, Eff. Aug. 28.
388 .682 State committee; appointment, distribution, vacancies,
compensation
Sec. 2. There is created, for the term of time necessary to complete
e requirements of this act, a state committee for the reorganization
0 scllool districts, appointed by the governor, and composed of 7
Members, at least 1 of whom shall represent the Upper Peninsula, 1
e area above the Bay City-Muskegon line, and 5 shall be appointed
ln such manner as to represent fairly the remainder of the state. The
Ŝ ê n̂ ent̂ enf of public instruction shall be the nonvoting chairman
0 ae committee. Vacancies shall be filled by appointment of the
overnor. Members of the state committee shall serve without com-
®̂ ation- The members of the committee shall be appointed within
, days after the effective date of this act. P.A.1964, No. 289, § 2, Eff.
Aug. 28. ....
72aa
3 8 8 . 6 8 3 Same; officers, records, meetings, quorum
Sec. 3. Within 90 days after the effective date of this act, the state
committee shall organize by electing a vice-chairman and a secretary,
REORGANIZATION OF SCHOOL DISTRICTS 3 8 8 ,6 8 4
The vice-chairman shall act as chairman at the request of the superin
tendent of public instruction. The secretary shall keep the records of
official committee meetings and prepare and distribute materials as
requested by the state committee. Meetings of the committee shall
be held upon the call of the chairman or any 3 of the members thereof,
Five members, which may include the superintendent of public in
struction, constitute a quorum. P.A.1964, No. 289, § 3, Eff. Aug. 28,
388.684 Same; school district reorganization program, surveys,
approval of proposals, reports
Sec. 4. The state committee shall:
(a) Within 12 months after the effective date of this act, develop
policies, principles and procedures for a statewide school district re
organization program planned so that all areas may become part of
a school district operating or designed to operate at least 12 grades,
In no case can an intermediate district committee plan be submitted
under this act which would require the merger of 2 or more school dis
tricts of the third class or higher. There shall be created no less than
500 school districts operating 12 grades.
(b) Direct area surveys and develop a manual of procedure to be
printed and distributed to all intermediate district superintendents of
schools.
(c) Perform either by itself or by its authorized representative any
or all of the duties required by this act to be performed by the inter
mediate school district superintendent, the intermediate district board
of education, the intermediate district committee, or the probate judge
or judges, in case of failure by any or all of them to perform these
duties.
(d) Review and approve or reject intermediate district plans with
in 60 days after receipt of plans from the intermediate district com
mittees.
(e) Report to each intermediate district the acceptance or rejection
of the proposed plans with recommendations for changes.
(f) Present a progress report on reorganization under this act to
the state legislature on or before March 1 of each year. P.A.1964, No,
289, § 4, Eff. Aug. 28.
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388 .685 Intermediate committee; membership, election, vacan
cies, organization, duties
Sec. 5. (1) A committee shall be organized in each intermediate
district in the state to be known as the intermediate district commit
tee for the reorganization of school districts. The intermediate dis
trict superintendent of schools shall be nonvoting chairman of the
intermediate district committee, and he shall preside over all meet
ings of the intermediate district committee. The intermediate district
committee shall complete the requirements of this act and comply
with the requests made by the state committee.
There shall be 18 members on the intermediate district committee
each of whom shall be a registered resident elector. In intermediate
districts containing no district operating 12 grades or more and in
intermediate districts containing no non-high school districts the com
mittee shall consist of 13 members.
(2) Members of the intermediate district committee shall be chosen
as follows:
(a) The intermediate board of education shall appoint 3 of its mem
bers to serve on the committee.
(b) The intermediate district superintendent of schools, by notice
sent by mail, shall call a meeting of the boards of education of all school
districts operating a program of 12 grades or more in the intermediate
district. The meeting shall be held at some convenient place within
the intermediate district within 60 days after the effective date of this
act. The intermediate district superintendent shall act as chairman
of this meeting, and the board members shall elect by ballot 5 persons
to serve on the intermediate district committee not more than 2 of
whom shall be from any one constituent district, unless there are fewer
districts than there are positions to fill. The 5 persons receiving the
highest number of votes shall be declared elected. No person may be
elected to or serve on the committee who is an employee of any con
stituent school district or of the intermediate school district. The
chairman shall appoint 3 or more tellers to conduct the election and
to canvass the vote. Whenever not more than 2 of the 5 members fail
to serve on the committee, the remaining members shall fill the va
cancy from the same constituent district in which the vacancy occurs.
Whenever 3 or more vacancies occur at the same time, the vacancies
shall be filled in the same manner as the original committee members
were elected.
(c) The intermediate district superintendent of schools, by notice
sent by mail, shall call a meeting of the boards of education of all school
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districts operating less than a twelve-grade program in the interme
diate district. The meeting shall be held at some convenient place
within the intermediate district within 60 days after the effective date
of this act. The intermediate district superintendent shall act as chair
man of this meeting, and the board members shall elect by ballot!
persons to serve on the intermediate district committee not more that
2 of whom shall be from any one constituent district, unless there an
fewer districts than there are positions to be filled. The 5 person!
receiving the highest number of votes shall be declared elected. No
person may be elected to or serve on the committee who is an em
ployee of any constituent school district or of the intermediate school
district. The chairman shall appoint 3 or more tellers to conduct the
election and to canvass the vote. Whenever not more than 2 of the!
members fail to serve on the committee, the remaining members shal
fill the vacancy from the same constituent district in which the vacancy,
occurs. Whenever 3 or more vacancies occur at the same time, the
vacancies shall be filled in the same manner as the original committee
members were elected.
(d) The intermediate district superintendent of schools, by notice
sent by letter, shall notify the probate judge of the area, who, withii
60 days after the effective date of this act, shall appoint 5 membffl
to the committee fairly representing all areas of the intermediate dis-
trict. The qualifications of these members shall be the same as those
o f the other members of the committee. The probate judge shall I
all vacancies that may occur among his appointees. In any into' t
mediate district where there are 2 or more probate judges the judges
acting jointly shall make the appointments.
(3) Organization of the intermediate district committee shall be
completed in each district within 6 months after the effective date of
this act. If an intermediate district committee has not been organic
ed within 6 months, the state committee shall appoint the membes
within 60 days thereafter. In which event the same limitations shal
apply as provided in this section. P.A.1964, No. 289, § 5, Eff. Aug-
28.
3 8 8 . 6 8 6 Same; meetings, records; district reorganization pi®1
hearings, approval, revision, dissolution of comm#
Sec. 6. Each intermediate district committee shall elect a sec
tary who shall keep the minutes and records of all official meew
Meetings shall be held upon the call of the chairman or any 3 mem ̂
o f the committee. A majority of the committee shall constitu e
)
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quorum. The intermediate district committee shall follow the proce
dure guide provided by the state committee and prepare a district re
organization plan, which shall be submitted to the state committee
for its approval or disapproval. The plan shall provide for the reor
ganization of school districts within the intermediate district so that
all areas of the district may become a part of a school district operat
ing or designed to operate at least 12 grades. The intermediate dis
trict committee shall hold at least 1 public hearing regarding the plan
but may hold as many more as it deems necessary. Hearings shall
be advertised by publication at least once in a newspaper of general
circulation in the districts 10 days or more before the scheduled hear
ing. The intermediate district plan for reorganization shall be sub
mitted to the state committee for its consideration within 9 months
after receiving the manual of procedure from the state committee. If
the intermediate district plan is approved by the state committee, the
plan shall be submitted to the electors as provided in section 7 of this
act.1 If an intermediate district plan is rejected by the state commit
tee, a revised plan shall be submitted by the intermediate district com
mittee within 90 days after receipt of the rejection of the original plan.
If the revised plan is not accepted by the state committee, the state
committee shall submit a plan for the reorganization of the school dis
tricts in the intermediate school district and the intermediate commit
tee shall also submit a plan for the reorganization of the school dis
tricts in the intermediate school district. The intermediate school dis
trict board shall submit both plans to the electors of the intermediate
school district and the plan receiving the larger number of votes shall
be submitted to the qualified electors of the intermediate school dis
trict in accordance with the requirements of method 2 provided in sec
tion 7 of this act. Following this election, the intermediate commit
tee shall be dissolved and the requirements of this act shall have been
®et and no further plans shall be re-submitted for 5 years by either
the state committee or the intermediate district. The intermediate
istrict committee shall also be dissolved on completion and acceptance
o the plan by the state committee and the vote or votes on the plan
y the electors of the proposed school district. P.A.1964, No. 289,
KEff.Aug.2 8 .
1 Section 388.687.
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388.687 Optional methods of election for adoption of reorganize
tion plans, conduct
Sec. 7. Not less than 90 days nor more than 6 months following
approval of an intermediate district plan as provided in section 6 of
this act1 elections shall be held according to one of 2 methods. The
intermediate district committee shall determine which election method
shall be used.
Method 1. The entire area encompassed by the intermediate dis
trict plan shall vote as a unit on the question: “Shall the approved
reorganization plan for the ....................... intermediate district be
adopted?
Yes ( )
No ( ) ”
If a majority of the qualified electors present and voting approve
the plan it shall be declared adopted and shall become effective j
throughout the area on the date of the election if the election is held
after April 30 but before September 1. The effective date shall be July
1 following if the election is held after August 31 but before May 1.
Method 2. The proposed districts provided for in the approved
plan shall vote by proposed districts on the question: “Shall the ap
proved reorganization plan, for a proposed local district..................
within the intermediate district of . . . . . . . . be adopted?
Yes ( )
No ( ) ”
If a majority of the qualified electors present and voting in a pro
posed district approve the plan for that proposed district it shall be
declared adopted and shall become effective throughout the proposed
district on the date of the election if the election is held after April 30
but before September 1. The effective date shall be July 1 following
if the election is held after August 31 but before May 1.
If election method number 1 is adopted by the intermediate district
committee and if the question voted on fails to obtain an affirmative
majority, then another election using method number 2 shall be held
not less than 90 days nor more than 6 months after the date of the
first election. The results of this election using method num ber 2
shall be final and the requirements of this act shall have been met
If the intermediate district plan provides that the boundaries of an
existing school district shall remain the same such district shall not
participate in an election held under either method number 1 or meth
od number 2.
If the election is held under method number 1, the plan to be voted
on shall not cause an existing school district to be divided between 2 m-
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termediate districts but property transfers may be made later accord
ing to the provisions of chapter 5, part 2 of the school code.2 The plan,
may provide for division of districts within an intermediate district.
If and when voting method number 2 is used, the plan shall not
cause an existing school district to be divided between 2 proposed lo
cal districts within the intermediate unit but property transfers may
be made later according to chapter 5, part 2 of the school code.
No property transfers shall be made after the approval* of the in
termediate district plan by the state committee until after the elections
provided for in this section have been held.
The question of assumption of bonded indebtedness shall not be in
cluded in any election held under the provisions of this act but the
provisions of sections 412 and 413 of the school code3 regarding as
sumption of debt shall apply.
The qualifications of electors shall be the same as now provided in
the statutes for votes on consolidation and annexation and the pro
visions of the general election laws shall apply.
The board of education of the intermediate school district shall con
duct the election or elections provided for in this section according to
the general election laws and according to chapters 7 and 8 of part
2 of the school code.4 P.A.1964, No. 289, § 7, Eff. Aug. 28.
1 Section 388.686.
2 Section 340.461 et seq.
3 Sections 340.412, 340.413.
‘ Sections 340.511 et seq., 340.531 et seq.
388 .688 Classification of districts formed
Sec. 8. Districts formed under the provisions of this act shall be
classified as second, third or fourth class districts depending upon the
school census as provided for in chapters 3,4 and 5, part 1 of the school
code.1 P.A.1964, No. 289, § 8, Eff. Aug. 28.
1 Sections 340.51 et seq., 340.101 et seq., 340.141 et seq.
388.689 Consolidation, annexation or division of districts
^.C‘ After the effective date of this act, the superintendent of
P he instruction, when requested to approve a consolidation, annexa-
lon °r division of a district, shall give careful consideration to the
Egress of the implementation of the requirements of this act. P.A.
No. 289, § 9, Eff. Aug. 28.
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3 8 8 . 6 9 0 School aid, apportionment
Sec. 10. School districts formed under the provisions of this act
shall be entitled to and receive financial aid from the state in the man
ner provided by legislative appropriation for school aid purposes ex
cept that the apportionments of state aid due any school district form
ed under this act in the 2 fiscal years next following reorganization
shall not be less than the aggregate of state aid which would have been
due proportionately to the component districts prior to the reorganiza
tion. It shall be the duty of the superintendent of public instruction
in making apportionments of state aid to adjust the amount of state
aid due each such school district accordingly. P.A.1964, No. 289, § 10,
Eff. Aug. 28.
388.691 Board of education of newly-formed district
Sec. 11. Where the proposed district involves expansion of the
boundaries of an existing twelve-grade district by addition of non
twelve-grade territory the board of education of the twelve-grade dis
trict shall continue as the board of the enlarged district.
Where the proposed district involves the merger of 2 or more twelve-
grade districts With or without the addition of non-twelve-grade terri
tory, or where the proposed district involves merger of non-twelve-
grade districts into a new twelve-grade district a board of education
fairly representing all areas of the new district shall be appointed by
the intermediate district board to serve until a new board is elected
as provided in section 410 of the school code.1 P.A.1964, No. 289, S
11, Eff. Aug. 28.
1 Section 340.410.
388.692 Board of education of district losing identity, records,
property
Sec. 12. The boards of education of any district which lose identi
ty shall turn over their books, records, funds and property to the new
board within 10 days after the effective date of the reorganization.
If any existing district is divided, the intermediate district board, °r
boards, shall specify the division of assets and liabilities. P.A.W
No. 289, § 12, Eff. Aug. 28.
3 8 8 . 6 9 3 Final report; termination of act
Sec. 13. The state commission shall make a final report to the state
legislature on or before September 1, 1968, and this act shall expn
on the date of filing the final report. P.A.1964, No. 289, § 13,
Aug. 28.
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388.851 Public or private school buildings; construction requirements, waiver
Sec. 1. No school bu ild in g, p u b lic o r p riv a te , o r ad d ition s thereto, sh a ll be erected ,
remodeled or recon stru cted in the state ex cep t it be in co n fo rm ity w ith the fo llow in g
provisions:
(a) All plans and sp ec ifica tion s fo r bu ild in gs shall be p repared by , an d the con
struction supervised by, an a rch itect o r en g in eer w h o is reg istered in the sta te o f
Michigan. B efore the con stru ction , recon stru ction o r rem od elin g o f any school
building or addition th ereto is com m enced , the w ritten ap p rova l o f the p lan s and
specifications by the superin tendent o f p u b lic in stru ction o r his a u th orized agent
shall be obtained. T h e su perin tendent o f p u b lic in stru ction o r h is a u th orized agent
shall not issue such ap p rova l un til he h a s secu red in w r itin g the a p p rov a l o f the
state fire m arshal, o r the a p p rop ria te m un icip a l o f f ic ia l w hen c e rt ific a t io n as
described in section 3 i has been m ade, re la tiv e to fa c to r s con cern in g f ir e sa fety
anil of the health departm en t h a v in g ju r isd ic t io n re la tiv e to fa c to r s a ffe c t in g w ater
supply, sanitation and fo o d handling.
The superintendent o f p u b lic in s tru ction sh a ll pub lish an in fo rm a tiv e bu lletin
which shall set fo rth good sch ool bu ild in g p lan n in g p roced u res and in terp ret c learly
the provisions o f this act. T h e b u lletin sh a ll be p repared in coop era tion w ith the
state fire marshal and the state hea lth com m ission er and, in s o fa r as requ irem en ts fo r
approval of plans are concerned , sh a ll be con sisten t w ith recogn ized g ood p ra ctice
as evidenced by stan d ard s ad op ted by n a tion a lly recogn ized a u th orit ies in the fie ld s
of fire protection and health .
(b) All walls, floors , p a rtit ion s and ro o fs sh a ll be con stru cted o f fire -resistin g
materials such as stone, b rick , tile, con crete , gypsu m , steel o r s im ila r fire -res istin g
material. A ll steel m em bers sh a ll be p ro tected b y a t least % o f an inch o f fire -
resisting material.
(c) No wood lath o r w ood fu rr in g sh a ll be used. T h ese reg u la tion s sh a ll n o t be
construed as p roh ib itin g the use o f fin ish ed w ood floo r in g , w ood d o o r and w in d ow
frames, wood sash o r w ood fu rr in g an d grou n d s, f o r the purpose o f in s ta llin g w ood
trim, panelling, acou stica l u n its o r s im ila r fa c in g m ater ia ls on m ason ry w alls ,
structural steel or con crete ce ilin g m em bers.
(d) Every room en closin g a heatin g u n it sh a ll be en closed by w a lls o f fire -resistin g
Materials and shall be equ ipped w ith a u tom a tica lly c los in g f ir e d o o r s ; and said
beating unit shall not be lo ca ted d ire ct ly ben eath any p ortion o f a s ch oo l b u ild in g or
addition thereto w h ich is con stru cted o r recon stru cted a fte r the e ffe c t iv e d ate o f this
act. This regulation sh a ll not be con stru ed to requ ire the rem ov a l o f an ex istin g
eatmg plant from beneath an ex ist in g bu ild in g w hen an ad d ition to su ch bu ild in g is
constructed unless the sta te su perin tendent o f p u b lic in s tru ction o r h is au th orized
a?ent, acting jo in tly w ith the state f ir e m arsh al, shall so requ ire in th e in terests o f
e Public safety. In any sch oo l w h ere n a tu ra l gas or an y oth er k ind o f gas is used
or seating purposes, the gas sh all be ch em ica lly trea ted b e fore bein g used in such
manner as to give a v ery d istin g u ish a b le o d o r i f any leak sh ou ld d evelop in the
Heating system.
(e) In gymnasiums, fir e -p ro o fin g s m ay be om itted from the tru sses an d p u rlin s i f
y ®re more than 16 fe e t o f f th e m ain f lo o r level. T h e a rch itect o r en g in eer shall
wde adequate ex its from a ll p a rts o f sch oo l bu ild in gs. In all cases there shall
least 2 sta irw ays and the d ista n ce from the d oor o f any class o r assem bly room
a stairway or ex it sh all not ex ceed 100 feet.
Provisions in su bd iv is ion s (b ) to (e) m ay be w a iv ed in w r itin g by th e state f ire
marshal. —
As amended P.A.1968, N o. 239, § 1 , E ff, Sept. I.
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388.1010 Same; powers and duties
Sec. 10. T h e state b o a rd o f ed u cation sh a ll a lso h a v e the fo llo w in g powers and
d u ties :
(a ) D eterm in a tion o f th e requ irem en ts fo r , an d issu an ce o f, a ll licenses and cer
t if ica te s f o r tea ch ers an d the end orsem en t o f teach ers as q u a lifie d counselors in the
p u b lic s ch oo ls o f th is state.
(b ) J u risd ic tion an d co n tro l o f th e M ich ig an s ch oo l f o r th e d e a f at Flint, lit
M ich ig an sch oo l f o r th e b lin d a t L an sin g , an d the M ich ig a n rehabilitation institute
f o r v e tera n s an d d isa b led a d u lts a t P in e lak e , in c lu d in g p o w e r to m ake rules * ' 1
f o r th e sch oo ls n ecessa ry to en fo rce d iscip lin e , p reserv e hea lth an d prov ide for prop
er p h y sica l, in te lle ctu a l an d m ora l tra in in g o f th e ir pupils.
(e ) K eg u la tion o f s ch oo l bu s tra n sp orta tion , rev iew o f the an nexation or attach
m ent o f n on op eratin g s ch oo l d is tr ic ts to op era tin g sch oo l d istr icts , and the hearing
o f ap p ea ls fr o m d ecis ion s on a ltera tion s o f b ou n d a ries o f s ch oo l d istr icts as may te >
p rov id ed b y law . T h e b o a rd m ay a p p o in t a h ea rin g o f f i c e r to h ea r the appeals from
d ecis ion s on a ltera tion s o f bou n d a ries o f s ch oo l d is tr ic ts w h o sh a ll prepare a written
rep ort f o r con s id era tion o f th e boa rd . A c o p y o f the w r itten rep ort shall be fur
n ished to the d esign ated a p p ella n t an d appellee, w h o w ith in 20 d a y s m ay file written
o b je ct io n s t o the rep ort w ith th e sta te b o a rd o f ed u ca tion fo r its consideration
A ft e r con s id er in g th e rep ort o f the h ea rin g o f f ic e r and an y ob je ct ion s filed by In
terested p arties , th e b o a rd m a y d eterm in e th e ap p ea l o r o rd e r a hearin g by it of the
ap p ea l fr o m the d ec is ion on a lte ra tion s o f bou n d a ries o f s ch oo l districts.
(d ) In sp ection o f e d u ca tion a l corp ora tion s as m a y be p rov id ed b y law .
(e) T h e appointm en t * * * o f the m em bers o f the state board for public
com m u n ity an d ju n io r co lleges , as p rov id ed by law .
A m en d ed by P.A .1989, N o. 2 2 9 ,1 1, E f f . J u ly 1 ,1971 .
388.1S17 Statements of amount to be distributed; warrants
Sec. 17. O n o r b e fo re A u g u st 1, O ctob er 1, D ecem b er 1, F ebru ary 1, April 1*^
Ju n e 1, the d epartm en t sh a ll p rep are a statem en t o f the am oun t to be distributed >■
the in sta llm en t to the d is tr ic ts an d d e liv e r th e statem en t to the sta te treasurer, w o
sh a ll d ra w h is w a rra n t in fa v o r o f th e trea su rer o f ea ch d is tr ic t fo r the amouj
p a y a b le to the d is tr ic t a cco rd in g to th e statem en t and d e liv e r th e warrants to«
trea su rer o f ea ch d istr ic t.
P .A .1972, N o. 258, f 17, Im d . E f f . A u g . 8.
388.1171 Amount of and prerequisites for grants of aid; routes, distance, and '
ability and number of vehicles and equipment, review, confirm*
setting aside, or amending actions or decisions
Sec. 71. (1) D is tr ic ts tra n sp ortin g p u p ils fr o m the v ic in ity o f their homes to J
s ch oo ls they a tten d an d re tu rn sh a ll be g ran ted a llo tm en ts fr o m the school ala
in am oun ts d eterm in ed b y th e d ep a rtm en t bu t n ot to ex ceed 7 5 % o f the actual (j
o f the tra n sp orta tion . A llo tm en ts sh a ll n o t b e gran ted fo r the transports o
ch ild ren liv in g w ith in 1 % m iles o f the sch oo ls they atten d . Transportation
tances sh all be m easu red a lon g p u b lic s tree ts an d h igh w ays. ,
(2) A lth ou gh the ch ild ren m a y liv e 1 % m iles o r m ore fro m the schools they a
a llo tm en ts sh a ll n o t be g ran ted fo r the tra n sp orta tion o f ch ild ren living wit® ^
co rp o ra te lim its o f c it ie s o r v illa g es un less 1 o f the fo llo w in g conditions ex
th e ch ild ren tra n sp orted :
81aa
(a) The children tra n sp orted liv e in a d is tr ic t o rg a n ized p r io r to J u ly 1, 1955 as a
township or a rural a rg icu ltu ra l s ch oo l d istr ict.
(b) The children tra n sp orted live w ith in a d is tr ic t an d w ith in c ity o r v illage
limits the m ajor p ortion o f w h ich is in a d is tr ic t o rg a n ized p r io r to J u ly 1, 1955 as
a township or rural a rg icu ltu ra l sch oo l d istrict.
(c) The children tra n sp orted liv e w ith in a c ity o r v illa g e an d th e la rg er pupil
population o f the c ity o r v illa g e is con ta in ed in an oth er s in g le d is tr ic t an d no sch ool
the children can atten d is op era ted in the p ortion o f the c ity o r v illa g e w ith in the
district.
(d) The children tra n sp orted liv e in a d istr ict, con ta in in g 2 o r m ore c itie s o r
villages or parts o f 2 o r m ore c ities o r v illages, op era tin g 1 h igh sch o o l an d 1 ju n io r
high school or 1 com b in ation ju n io r -sen io r h igh sch oo l an d the ch ild ren tra n sp orted
are enrolled in grades 7 -1 2 an d the sch ool bu ild in g in w h ich th ese g ra d es are taugh t
Is located outside the co rp o ra te lim its o f the c ity o r v illa g e in w h ich th ey reside.
(e) The children liv e w ith in a d is tr ic t an d w ith in c ity o r v illa g e lim its and atten d
a public school located ou ts id e an y c ity o r v illage.
, (0 The children liv e w ith in a d is tr ic t and w ith in a c ity o r v illa g e a n d the sh ortest
available route requires a bu s to leave th e c ity o r v illa g e o v e r s tree ts o r h ig h w ay s
outside of any city o r v illa g e an d retu rn to the c ity o r v illa g e in w h ich th e ir p u b lic
school is located and they r id e in the bus a t the tim e o f e x it fr o m th e c ity o r v illage.
(g) The children liv e w ith in a d is tr ic t an d a re tra n sp orted to a n oth er d is tr ic t f o r
education in grades n ot p ro v id e d in the d is tr ic t in w h ich th ey reside.
(3) Upon investigation the d epartm en t sh a ll rev iew , co n firm , se t a sid e o r am end
the action, order o r d ecis ion o f the b oa rd o f any d is tr ic t w ith re fe ren ce to the rou tes
ever which children sh all be tran sp orted , a d ista n ce th ey sh a ll b e requ ired to wTalk,
•tithe suitability and nu m ber o f veh icles an d eq u ip m en t fo r the tra n sp orta tion o f
the children.
(1) An allotment fo r tra n sp orta tion sh a ll n o t be a llow ed a d is tr ic t w h ich op era tes
•bus route disapproved by the departm ent.
!p.A.1972, No. 258, § 71, Im d. E ff . Aug. 8.
*h!234 Approval as prerequisite to Issuance of notes; necessity, application for
approval; certificate of approval, contents; multiple borrowings In
single year
Sec. 1 3 4 , Notes sh all not be issu ed f o r b orro w in g u n d er th is ch a p ter w ith ou t
e Prior approval o f the d epartm en t fo r w h ich ap p rov a l a p p lica tion sh a ll be m a d e
/the district. T he d epartm en t sh a ll issu e a ce r t if ic a te o f a p p rov a l w h ich sh a ll
tlThi amount ° * s ta*e a id a llo ca ted to the d is tr ic t f o r th e p resen t and, i f ap -
disM r ’ ^ tbe Dext su cceed in ® fis c a l y e a r an d an y p ay m en ts d istr ib u ted to the
. .J et, pri°r to the d ate o f the ce rt ifica te . A d is tr ic t m a y m ak e m ore than 1
p 1 1°^ ng un<*er th is ch a p ter d u rin g an y sch oo l year.
'U972- No. 258, § 134, Im d. E f f . A u g . 8.
82aa
3 4 0 . 6 0 0 Transportation of pupils; authority of superintendent
of public instruction as to routes, walking, suitability
and number of vehicles
Sec. 600. The superintendent of public instruction shall have au
thority by himself or someone designated by him, to review, confirm,
set aside or amend the action, order or decision of the board of any
school district with reference to the routes over which pupils shall be
transported, the distance such pupils shall be required to walk, and the
suitability and number of the vehicles and equipment for the trans
portation of the pupils. P.A.1955, No. 269, § 600, Eff. July 1, as
amended P.A.1963, No. 241, § 1, Eff. July 1,1964.
388.629 Nonresident pupils, certificate
Sec. 19. The secretary of the board of education of each district
enrolling nonresident pupils shall certify to the superintendent of pub
lic instruction on forms furnished by the superintendent of public in
struction, the number of nonresident pupils enrolled in each grade
on the fourth Friday following Labor Day of each year, the districts
in which the nonresident pupils reside, the amount of tuition charged
for the current year, and any other information required by the super
intendent of public instruction. P.A.1957, No. 312, § 19, Eff. Jtilyl,
as amended P.A.1958, No. 22, § 1, Eff. July 1; P.A.1959, No. 267,1
1, Imd. Eff. Sept. 18.
388.643 School district reports; salary schedule; failure, for
feiture
Sec. 33. Before the first Monday in November of each year each
school district of this state shall furnish to the superintendent of pub
lic instruction such reports as he shall deem necessary for the determi
nation of the allotment of funds under the terms of sections 8 et seq.
of this act.1 Each school district employing 25 teachers or more shall
furnish to the superintendent of public instruction a copy of its salary
schedule and a statement to what extent the schedule is being observed,
Any school district which fails through the negligence of its officers
to file reports in accordance with this section shall forfeit such propor
tion of funds to which said district would otherwise be entitled under
the terms of sections 8 et seq. of this act as the delay in said reports
bears to the school term as required by law for such district. P-*
1957, No. 312, § 33, Eff. July 1.
1 S ection 388.618 et seq.
IN T HE S U P R E M E C O U R T OF T H E
U N I T E D S T A T E S
O c t o b e r T e e m , 1973
No. 73-434
W i l l i a m G. M i l l i k e n , et al.,
vs.
R o n a l d G. B r a d l e y , et al.
Petitioners,
No. 73-435
A l l e n P a r k P u b l i c S c h o o l s , et al.,
Petitioners,
vs.
R o n a l d G . B r a d l e y , et al.
No. 73-436
T h e G e o s s e P o i n t s P u b l i c S c h o o l S y s t e m , et al.,
Petitioners,
vs.
R o n a l d G . B r a d l e y , et al.
On Writs of Certiorari to the United States
Court of Appeals for the Sixth Circuit
BRIEF OF RESPONDENTS KERRY GREEN, ET AL.
R o b e r t J. L o r d
8388 Dixie Highway
Fair Haven, Michigan 48023
Attorney for Respondents
Kerry Green, et al.
Defendants-Intervenors Below
TABLE OF CONTENTS
Page
Table of Authorities ................................................... ii
Question Presented ....................................................... 1
Statement of the Case................................................... 2
The Status of Respondents as Defendants-Inter-
venors in Lower Court Proceedings ..................... 2
Participation of Respondents in District Court In
terlocutory Remedy Proceedings ..............-.......... 4
Participation of Respondents in Appellate Pro
ceedings ................................................................... 6
The Stillborn Third Theory Proposed to Justify
a Suggested Compulsory Transfer and Transpor
tation of Respondent Children to Detroit Public
Schools ..................................................................... 9
Participation of Respondents in Proceedings Be
fore the District Court Relating Back to the Com
plaint Commencing this Action and Now Concern
ing a Fourth Theory Proposed to Justify Compul
sory Transfer and Transportation of Respondent
Children to Detroit Public Schools.................. 10
Argument ....................................................................... 30
Conclusion ..................................................................... 33
IX
TABLE OF AUTHORITIES
Page
Alexander v. Holmes County Board of Education, 396
U.S. 19 (1969) ...................................................... 32
Berdie v. Kurts, 88 F.2d 158 (10 Cir.1937) ............... 8
Bradley v. Milliken, 468 F.2d 902 (1972) ................... 7
Bradley v. Milliken, slip opinion. December 8, 1972,
vacated January 16, 1973 ....................................... 9
Bradley v. Richmond School Board, 51 F.R.D. 139
(1970) 4
Brown v. Board of Education of Topeka, 349 U.S. 294
(1955) (Brown II) ................................................ 8,31
Heine v. Board of Levee Commissioners, 86 U.S. 655
(1873) ...................................................................... 8
In Re Bowman, 24 F. Snpp. 381 (S.D.Cal.1938) ........ 8
Meyer v. City of Eufaula, Oklahoma, 132 F.2d 648
(10 Cir.1942) ........................................................... 8
Rees v. City of Watertown, 86 U.S. 107 (1873) .......... 8
Richardson v. Roberts, 26 Cal. Reptr. 829 (1962) ...... 8
Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1 (1971) .................................................... 8
Miscellaneous:
Boorstin, Daniel J., The Americans, The National Ex
perience, Vintage Books, Random House, Inc.,
1965 .......................................................................... 30
IN T HE S U P R E M E C O U R T OF T H E
U N I T E D S T A T E S
October T erm, 1973
No. 73-434
W illiam G. M illiken , et al.,
Petitioners,
vs.
R onald G-. B radley, et al.
No. 73-435
A llen P ark P ublic S chools, et al.,
Petitioners,
vs.
R onald G. B radley, et al.
No. 73-436
T he Grosse P ointe P ublic School System, et al.,
Petitioners,
vs.
R onald G. B radley, et al.
On Writs of Certiorari to the United States
Court of Appeals for the Sixth Circuit
BRIEF OF RESPONDENTS KERRY GREEN, ET AL.
QUESTION PRESENTED
The petitioners Milliken having filed their responsive
pleading to the Bradley respondents’ amended complaint
pending in the District Court, should the writs of cer
tiorari be dismissed as improvidently granted and the en
2
tire action be remanded to the District Court for trial de
termination of all fact and law issues presented or, alterna
tively, should the writs be postponed pending remand to
the District Court for trial determination of all fact and
law issues presented and appeal permitted directly to this
Supreme Court by-passing the Court of Appeals?
STATEMENT OF TEIE CASE
The Status of Respondents as Defendants-
Intervenors in Lower Court Proceedings
Respondents are a number of children attending pub
lic schools in the tri-county area of Wayne, Oakland and
Macomb counties other than in the City of Detroit, a num
ber of their parents and Tri-County Citizens For Inter
vention In Federal 'School Action No. 35257, a Michigan
non-profit corporation formed October 26, 1971 for the fol
lowing purpose:
“ To take all organizational and necessary legal ac
tion to intervene representatively as a defendant in
Civil Action No. 35257, pending in the United States
District Court, Eastern District of Michigan, Southern
Division, for and on .behalf of all school children and
all resident parents who have children of school age
in each and every school district in Macomb County,
Oakland County and in Wayne County other than
the City of Detroit, and in general to do all things in
connection therewith and incident thereto not forbid
den by the laws of the State of Michigan and with
all the powers conferred upon non-profit corporations
by the State of Michigan.”
On December 2, 1971, respondents filed their interven
tion motion accompanied by a proposed pleading answer
ing the complaint commencing this action (la and IalO) and
challenging a July 16, 1971 motion to join additional par
ties defendant (Iall9) for complete relief to respondents
Ronald Bradley, et al. (respondents Bradley) as a mis-
denominated third-party complaint, said motion to join
3
85 school districts in said tri-county area having been filed
by respondents Denise Magdowski, et al. (respondents Mag
dowski), several Detroit children and their parents and a
Michigan non-profit corporation (Citizens Committee For
Better Education formed July 22, 1970 for the purpose of
promoting quality education and preserving the neighbor
hood school as an integral principle of education in
Detroit) granted leave to intervene as defendants in March
1971.
Respondents:’ proposed pleading also stated a counter
claim against respondents Bradley requesting a declara
tory judgment that the 85 school districts sought to be
joined as defendants by respondents Magdowski were
bodies corporate which could sue and be sued and not
mere ministerial agents of petitioners William Milliken,
et al. (petitioners Milliken), as contended by respondents
Bradley, and that respondents Bradley were not entitled
to any relief against all or any of the 85 school districts
sought to be joined absent proof of state-enforced sepa
ration of races among the student populations of one or
more of said 85 school districts.
Respondents were granted leave to intervene as defend
ants on March 15, 1972 (Ia204) subject to the same re
strictions as imposed upon the intervening’ petitioners Al
len Park Public Schools, et al., and Grosse Pointe Public
School System.
Individually and as a class, the respondent children and
parents are the persons upon whom would chiefly fall the
burden of a so-called ‘metropolitan remedy’ to ‘ desegre
gate’ Detroit public schools as first partially suggested by
the District Court in his November 5, 1971 interlocutory
order (46a).
The District Court never ruled on the motion to join ad
ditional parties defendant (Iall9) and respondents Mag
dowski withdrew their motion on June 29, 1972, thus end
ing the first theory of strategy proposed to justify a sug
gested compulsory transfer and transportation of respond
ent children to Detroit public schools.
As a tactical matter, respondents have never under
stood why the various petitioners Allen Park Public
Schools, et al., and Grosse Pointe Public School System
sought to intervene as defendants in this action instead
4
of strategically seeking only leave to oppose the Mag-
dowski motion (Iall9) as was sought and granted in
Bradley v. Richmond School Board, 51 F.R.D. 139, 140
(E.D. Va.1970).
Participation of Respondents in District
Court Interlocutory Remedy Proceedings
Respondents submitted a brief in opposition on the ques
tion of the propriety of a so-called ‘metropolitan remedy’
to ‘ desegregate’ Detroit public schools as posed by the
District Court (Ia203).
Respondents did not participate in the District Court
hearing on intra-city desegregation plans only (IVal),
said hearing having been commenced the day before re
spondents were granted leave to intervene.
On May 4, 1972, in opposition to the District Court’s
March 24, 1972 ruling (48a), respondents filed the following
objections to testimony and exhibits received by the Dis
trict Court concerning a so-called ‘metropolitan remedy’
hearing commenced on March 28, 1972 (IVal42):
“ The defendants-intervenor Kerry Green et al. ob
ject to, and move to strike, all the testimony and ex
hibits offered and received at the hearings on a metro
politan remedy commencing March 28, 1972 for the
following reasons:
1. Brown v. Board of Education, 349 US 294 at 300
and 301 is not dispositive of the issue of the propriety
of the consideration by this Coui't of m etropolitan
plans directed toward the desegregation of the Detroit
public schools as an alternative to an intra-city de
segregation plan pursuant to the Court’s “ Ruling on
Issue of Segregation” (September 27, 1971).
2. The cradle of equity is the power to afford ade
quate remedy where the law is impotent ; it does not
create new rights, but affords a remedy for existing
rights. Berdie v. Kurts, 88 F2d 158 at 159 (10 Cir.
1937).
3. Questions of practice are not to be decided on
principles of raw equity which conflict with precedent.
5
4. A court of equity cannot, by avowing that there
is a right but no remedy known to the law, create a
remedy in violation of law, or even without authority
of law. Meyer v. City of Eufaula. Oklahoma, 132 F2d
648 at 652 (10 Cir.1942) citing Rees v. City of Water-
town, 86 US 107 at 122.
5. Absent a trial of the issue of the existence of
state-enforced separation of races in the public schools
in the suburban school districts in question, the entry
of a judgment predicated on metropolitan plans as
offered will constitute a denial of due process to the
State defendants, the corporate suburban school dis
tricts concerned and to the defendants-intervenor.
6. It is always the duty of a court of equity to
strike a balance between the needs of the plaintiff
and the consequences of giving desired relief. Espe
cially when governmental action is involved, courts
should not intervene unless the need for equitable re
lief is clear, not remote and speculative. Eccles v.
Peoples Bank, 333 US 426 at 431.
7. Substance, not semantics, must govern; and a
consequence of the metropolitan plans, if implemented
as offered, will be either (a) desegregation of the
student populations in all or some of the suburban
public schools concerned, or (b) integration of the
student populations of the Detroit public schools with
the student populations in all or some of the suburban
public schools concerned, altogether without pleading
and proof of state-enforced separation of races in
all or any of the suburban public schools concerned,
the question of whether or not the corporate suburban
school districts are sovereign entities, autonomous
bodies or agencies of the State being immaterial.
8. Judicial powers may be exercised only on the
basis of a constitutional violation. Swann v. Charlotte-
Mecklenburg Bd. of Ed., 402 US 1 at 16.
Empire Engineering Corp. v. Mach, 217 NY 85, 111
NE 475 at 478.
6
9. The plaintiffs have not shown a right and viola
tion concerning the student populations in all or any of
the suburban public schools in question.
Respectfully submitted,
Robert J. Lord
Attorney for Defendants-Intervenor
Kerry Green, et al.”
Participation of Respondents in Appellate
Proceedings1
In July 1972, the Sixth Circuit Court of Appeals granted
leave to appeal from four interlocutory District Court
orders pursuant to 28 U.S.C. § 1292(b), viz (112a):
1 The December 8, 1972 slip opinion of the Court of Ap
peals designated respondents as appellees whereas in fact
they were appellants. This error was brought to the Clerk’s
attention by letter to which he responded February 1, 1973:
“ Dear Mr. Lord:
This is in reference to your letter of January 22,
1973
In’ appeal No. 72-1814 in this court Kerry Green,
et al. are designated as Defendants-Intervenors-Ap-
pellants. I assume that the reference in your letter is
a result of the order of this court issued January 16,
1973, granting the petitions for rehearing in banc in
this cause. I am advised by the court that the designa
tion of Kerry Green, et al., as Defendants-Intervenors-
Appellees in that order was an inadvertent error.
According to our records the brief and appendix tor
Appellants, Kerry Green, et al., were filed August 10,
1972. The reply brief for the Appellants, Kerry Green,
et al., was filed August 22, 1972.
I hope this will be of assistance to you.
Very truly yours,
JAMES A. HIGGINS, Clerk”
Notwithstanding, the June 12, 1973 opinion (110a) desig
nates the respondents as appellees.
7
1. Ruling on Issue of Segregation, dated September
27,1971, reported at 338 F.Supp. 582 (17a),
2. Ruling on Propriety of a Metropolitan Remedy to
Accomplish Desegregation of the Public Schools of the
City of Detroit, dated March 24, 1972 (48a),
3. Findings of Fact and Conclusions of Law on ‘Detroit
only’ plans of desegregation, dated March 28, 1972 (53a),
and
4. Ruling on Desegregation Area and Development of
Plan, and Findings of Fact and Conclusions of Law in
Support Thereof, dated June 14, 1972 (59a and 97a), and
from one order construed to be final, the Order dated
July 11, 1972 directing" Michigan State officials to pur
chase 295 school buses (112a), the Court itself having
concluded the existence of at least one difficult issue of
first impression never before decided (108a).
Unfortunately a fifth interlocutory order (46a) was
not also similarly made appealable because the petitioners
Milliken were still seeking to overturn dismissal of their
improvident appeal from that November 5, 1971 order
(.Bradley v. Milliken, 468 F2d 902, cert, denied, 409 U.S.
844).
Respondents appealed from interlocutory rulings 2, 3 and
4 above, presenting for appellate 28 U.S.C. § 1292(b) re
view the following issue of first impression never before
decided by the Sixth Circuit Court of Appeals or this
Supreme Court:
“ Assuming arguendo that the District Court’s Sep
tember 27, 1971 de jure segregation ruling concerning
only Detroit public schools will be affirmed, was the
District Court’s March 24, 1972 metropolitan remedy
ruling in error, to-wit, that Brown II is dispositive
of the legal question of the District Court’s raw equity
authority to consider judicial enlargement of the public
school desegregation area beyond which a Brown I
constitutional violation was claimed or shown so as
ultimately to include not only Detroit public schools
but also numerous suburban public schools concerning
8
which no constitutional violation was ever claimed or
shown ? ’ ’
On appeal, respondents submitted that Brown v. Board
of Education of Topeka, 349 U.S. 294, 300-301 (1955)
(Brown II) was not dispositive of the threshold remedy
issue at bar as decided sua sponte by the District Court
in his March 24, 1972 ruling (48a), and that the District
Court erred in relying upon raw equity power to create
sua sponte a 53-school district desegregation area.
In sum and substance, respondents argued that the Dis
trict Court was erroneously proposing to use the lever
of raw equity power to justify a suggested desegregation
of numerous public school student populations beyond the
city of Detroit without claim or proof of state-enforced
separation of races in any public school other than in the
Detroit school district.
In short, realistically, the District Court was proposing
a so-called ‘metropolitan’ desegregation area with too
much baggage for one vehicle contrary to the admonitions
of Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1, 22, 23, 24, 28 (1971) and contrary to authority
that equity does not create new rights without authority
of law or sit to confer a windfall, the respondents relying
upon Rees v. City of^Watertown, 86 U.S. 107, 122 (1873),
Heine v. Board of Levee Commissioners, 86 U.S. 655, 658
(1873), Berdie v. Kurts, 88 F2d 158, 159 (10 Cir.1937),
In Re Bowman, 24 F. Supp. 381, 384 (S.D.Cal.1938),
M eyer v. City of Eufa/ula, Oklahoma, 132 F2d 648, 652
(10 Cir.1942), and Richardson v. Roberts, 26 Cal. Beptr.
829, 832 (1962).
The Sixth Circuit Court of Appeals, however ambig
uously (110a at 177a, 190a and 245a), vacated the District
Court’s ‘ equity’ ruling (48a), thus ending the second
theory judicially proposed to justify a suggested com
pulsory transfer and transportation of respondent children
to Detroit public schools.
9
The Stillborn Third Theory Proposed to
Justify a Suggested Compulsory Transfer
and Transportation of Respondent Chil
dren to Detroit Public Schools
The third theory proposed to justify a suggested com
pulsory transfer and transportation of respondent children
to Detroit public schools (“ Big city school systems for
blacks surrounded by suburban school systems for whites
cannot represent equal protection of the law.” ) was an
nounced sua sponte by the original Sixth Circuit Court of
Appeals panel on December 8, 1972 (Bradley v. Milliken,
slip opinion at page 65 under subtitle: “ De Jure Acts of
Desegregation” at page 64, December 8, 1972, not re
ported).
On January 3, 1973, respondents filed the following mo
tions in the District Court: (1) to vacate intervention
restrictions (Ia204), (2) entry of a respondent children
and parent class defense order, (3) to dismiss the com
plaint commencing this action (2a and IalO), except as
to the parties defendant who participated in the trial pro
ceedings commencing on April 6, 1971, unless the respond
ents Bradley filed an amended complaint complying with
Rule 19(c), Fed. R. Civ. P., and (4) to vacate the District
Court’s November 5, 1971 interlocutory order (46a) in
part (“ It is further ordered that the State defendants
submit a metropolitan plan of desegregation within 120
days.” ).
The District Court (the Honorable Stephen J. Roth
having suffered a heart attack on November 7, 1972) did
not hear the motions.
Upon the granting by the Court of Appeals of a re
hearing en banc on January 16, 1973, the third theory
judicially proposed to justify a suggested compulsory trans
fer and transportation of respondent children to Detroit
public schools was self-vacated (110a at 112a) thus ending
the short life of a new de facto Equal Protection Clause
violation however otherwise its ghost may pervade the June
12, 1973 en banc opinion as noted by Judge Kent in his
separate opinion (221a at 224a).
10
Participation of Respondents in Proceedings
Before the District Court Relating Back to
the Complaint Commencing this Action and
Now Concerning a Fourth Theory Proposed
to Justify Compulsory Transfer and Trans
portation of Respondent Children to Detroit
Public Schools
On July 31, 1973, the District Court notified all parties of
a conference in chambers on August 15, 1973.
On August 7, 1973, respondents Bradley first probed
a short-cut motion materialization of the fourth theory
proposed to justify a suggested compulsory transfer and
transportation of respondent children to Detroit Public
Schools as announced June 12, 1973 by a majority of the
Circuit Judges sitting en banc (110a at 174a:
‘ ‘ If school boundary lines cannot be changed for an
unconstitutional purpose, it follows logically that exist
ing boundary lines cannot be frozen for an unconstitu
tional purpose.”
and at 176a:
“ In United States v. Texas Education Agency, 467
F.2d 848, 873 (5th Cir. 1972), the Court said:
“ The discriminatory acts of the school au
thorities infect the entire school system; they are
particularly obvious in the so-called ‘ pockets’.
Some schools may be the ‘ result’ of state-imposed
segregation even though no specific discriminatory
school board action may be shown as to those
schools. Had the school authorities not specifi
cally segregated the minority students in certain
schools, other schools may have developed as de
segregated facilities. Thus, though they may not
be ‘ pockets of discrimination’, these schools are
the ‘ results’ of discrimination.”
(the Court omitting to quote the concluding paragraph
sentences at 873-874: * * They must pass the
11
scrutiny test mandated by Swann. See 402 U.S. at 25-
26, 91 S.Ct. 1267, 28 L.Ed.2d 554.” and omitting also
to quote the third sentence thereafter at 874: “ * * *
Eelief from discrimination requires conversion ‘ to a
unitary system’. Green, supra, 391 U.S. 430, 88 S.Ct.
1689, 20 L.Ed.2d 716.” )
and at 177a:
“ We vacate the order of March 28 (24!), 1972,
entitled “ Euling on Propriety of a Metropolitan
Eemedy to Accomplish Desegregation of the Public
Schools of Detroit.”
This Court recognizes that, as set forth above, the
legislature of the State of Michigan has power to pro
vide a complete remedy for the unconstitutional segre
gation disclosed in this record. It, too, has respon
sibility for following the great mandates of the United
States Constitution.
If, however, the legislature fails to act, or if it
acts in a manner inconsistent with the expeditious and
efficient elimination of the unconstitutional practices
and conditions described in this opinion, the District
Court shall proceed to fashion such a remedy, includ
ing an interim remedy if found to be necessary, as it
shall determine to be appropriate within the guide
lines of this opinion.”
and at 188a-189a:
“ This opinion heretofore has emphasized that the
Legislature of Michigan has an opportunity to deter
mine the organizational and governmental structure
of an enlarged desegregation area to remedy the un
constitutional segregation results set forth in this
opinion. In the event the Legislature fails to act ef
fectively and expeditiously, the foregoing and other
cases cited in this opinion outline the broad scope of
equitable relief that may be fashioned by the District
Court in this case on remand after all school districts
12
to be affected are afforded an opportunity to be heard
as hereinable provided.” )
by jointly filing a separate motion to join numerous addi
tional parties defendant (Ia287) and the following separate
motion to require submission of proposals to legislature:
“ NOW COME plaintiffs, Ronald Bradley, et al.,
and move this Honorable Court to require the State
defendants, the Governor, the Attorney General, the
State Superintendent and the State Board of Educa
tion, to take all necessary steps to submit proposals
to the legislature of the State of Michigan which would
provide a complete remedy for the unconstitutional
segregation found by this Court and affirmed by the
Court of Appeals.
Such proposals should include, but should not he
limited to :
(a) The proposals previously submitted to the Court
by the State Superintendent of Education;
(b) Proposal limited to the compulsory exchange
of pupils, faculty and resources by contract or
otherwise for the purpose of desegregation;
(c) The reorganization, merger, and/or consolida
tion of school districts;
(d) Any other methods which would provide no less
full-time two-way, pupil and faculty desegrega
tion ;
(e) Provisions designed to prevent overt and covert
evasion of a plan of desegregation and measures
designed to effectuate and maintain a stable
system of desegregated schools.
Plaintiffs respectfully request that the Court require
the defendants to include in their recommendations to
the legislature, time tables for the accomplishment or
the proposed result consistent with federal constitu
tional requirements all in accordance with the opinion
of the Sixth Circuit Court of Appeals.
13
Plaintiffs respectfully move the Court to require
submission to it by the State defendants of a progress
report within thirty (30) days of the entry of the order
and that the Court require the defendants _ to ask
the legislature for a definitive response within sixty
(60) days of the order, or such other time as the
Court may determine all in accord with the Sixth Cir
cuit directive of ‘ effectively and expeditiously.’
supported by the following memorandum of points and au
thorities :
“ 1. Bradley v. Millileen, ..... F.2d ....., (Nos. 72-
1809 - 72-1814, June 12,1973, en banc) Slip. Op. at 71.”
On August 15, 1973, respondents filed objections (a) to
the motion to join parties unless respondents Bradley first
filed an amended complaint and (b) to the motion to re
quire submission of legislative proposals as beyond the au
thority of the District Court.
The District Court (the Honorable Stephen J. Both)
conferred with counsel of all parties on August lo, 1973.
and on that day (a) permitted respondents Bradley until
September 6, 1973 to file an amended complaint, and (b)
urged petitioner Kelley, as a matter of courtesy, to advise
the Michigan Legislature of the June 12, 1973 opinion.
On August 20, 1973, together with a copy of the June
12, 1973 opinion, petitioner Kelley forwarded the follow
ing letter to the President of the Michigan Senate and to
the Speaker of the Michigan House of Bepresentatives:
‘ ‘ Gentlemen:
At the request of Federal District Judge Stephen
J. Both, that the Michigan Legislature he advised of
the decision of the United States Court of AppeaL in
Bradley, et al v Milliken, et al, and that its attention
be directed to pages 68, 79 and 80 of the opinion, I
enclose herewith a copy of such opinion.
I am forwarding this opinion and information to you
because I am aware that presently the Michigan Legis
lature is adjourned to October 16, 1973, by Joint
14
Resolution of the Legislature. I ask that you bring
this matter to the attention of the members of the
Senate and House at your earliest opportunity.
As you know, my office is preparing a petition for
writ of certiorari to the United States Supreme Court
requesting that it review the decision of the United
States Court of Appeals in this case. It should be
filed shortly. I am of the opinion that the decision
of the Sixth Circuit Court of Appeals is erroneous
and will, in the end, not be upheld by the United
States Supreme Court.
Sincerely,
FRANK J. KELLEY
Attorney General
Enc.
cc: Hon. Stephen J. Roth
cc: All counsel of record”
On September 4, 1973, respondents Bradley filed their
amended complaint (Ia291).
On September 10, 1973, the District Court entered an
order joining numerous additional parties defendant (Ia-
300) and on October 19, 1973, entered an amending nunc
pro tunc order (la-302).
On September 20, 1973, respondents filed the following
responsive pleading to the amended complaint of respond
ents Bradley and the following counterclaim for declara
tory judgment against respondents Bradley:
ANSW ER TO PLAINTIFFS’ AMENDED COM
PLAINT AND COUNTERCLAIM FOR DE
CLARATORY RELIEF B Y DEFENDANTS-
INTERVENORS K ER R Y GREEN, ET AL.
“ Defendants-intervenors Kerry Green, et al., answer
plaintiffs’ amended complaint to conform to evidence
and state their counterclaim for declaratory relief
against plaintiffs as follows:
15
FIRST DEFENSE
This District Court does not sit as a super-legis
lature to determine the wisdom, need or propriety of
state legislation and the plaintiffs have failed to state
any claim or establish any fact in this action to justify
the entry of any order compelling the State defend
ants to lobby for any state legislation as requested
by the plaintiffs in their August 1973 Motion to Re
quire Submission of Proposals to Legislature.
SECOND DEFENSE
Plaintiffs have failed to state any claim or estab
lish any fact that deliberate state-enforced separation
of races exists in any public school in the tri-countv
area of Wayne, Oakland and Macomb counties beyond
the City of Detroit or that any public school in said
tri-county area beyond the City of Detroit is being-
operated by any deliberate state action in violation
of the Equal Protection Clause of the Fourteenth
Amendment.
THIRD DEFENSE
No child attending any public school in the said
tri-county area is a creature of the state and the
plaintiffs have failed to state any claim or establish
any fact to justify the entry of any order or judg
ment of the Court encroaching upon, abridging, in
fringing or violating the fundamental liberty and
privacy rights of residence, home, family life, parental
child-rearing and attendance at unitary public schools
now peaceably and lawfully enjoyed jointly and
severally as the case may be by all the individual
defendants-intervenors and all other individuals sim
ilarly situated in said tri-county area beyond the
City of Detroit, said fundamental liberty and privacy
rights being retained by the people as provided by
the Ninth Amendment and being also within the zones
of fundamental liberty and privacy rights guaranteed
by the First, Fourth and Fifth Amendments and by
16
the Due Process Clause of the Fourteenth Amend
ment.
FOUKTH DEFENSE
There exists no constitutional or equitable reason,
as mandated by the Equal Protection Clause or the
Supreme Court, why the Detroit public schools can
not be made to operate equitably as a unitary Detroit
school system, which is to say a school system from
which no Detroit school child is effectively excluded
by deliberate state action from any Detroit public
school because of race, without any additional state-
enforced or federal-enforced compulsory transfer or
transportation of school children to the Detroit public
schools from public schools or places beyond the City
of Detroit for any so-called ‘ limited’ remedial purpose
as may be claimed by the plaintiffs.
FIFTH DEFENSE
Plaintiffs have failed to state any claim or establish
any fact in this action to justify the Court’s entry of
any order or judgment providing for the compulsory
transfer or transportation, or for the compulsory
transfer and transportation, of any school child to a
public School in the City of Detroit from a public
school or a place beyond the City of Detroit for any
so-called ‘ limited’ remedial purpose or otherwise; and
no constitutional or compelling federal or state inter
est exists to justify any such judicial compulsory
transfer or transportation.
SIXTH DEFENSE
Plaintiffs have failed to state any claim or estab
lish any fact in, this action to justify the Court’s
entry of any order or judgment providing for the
desegregation of any public schools other than the
public schools within the Detroit school district or
enlarging the territorial desegregation area beyond
the City of Detroit so as to include public schools in
places beyond the City of Detroit.
17
SEVENTH DEFENSE
Answering the complaint commencing this action,
defendants-intervenors incorporate by reference the
sixth defense in the pleading accompanying their
amended motion to intervene.
EIGHTH DEFENSE
The complaint commencing this action, not amended
at any time until September 1973 and then only ‘ to
conform to evidence’, failed without any alleged rea
son therefor, as provided by FECP Kule 19(a) and (c),
to state the names known to plaintiffs of only lately
alleged necessary parties defendant who were not
joined as necessary defendants in this action when it
was commenced in 1970, particularly numerous school
districts in the said tri-county area other than the
Detroit school district; and said numerous school dis
tricts and their various officials are not bound to
their prejudice by the Court’s September 27, 1971
and March 28, 1972 decisions; nor does FRCP Rule
15(b) apply to necessary parties who were not here
tofore joined in this action; nor are those certain
school districts which were at their own request
granted leave to intervene as defendants on March 15,
1972 bound to their prejudice by said decisions for
the reason that said intervention was granted with
such restrictions as to render the same legally in
effectual.
NINTH DEFENSE
1. Defendants-intervenors admit the averments con
tained in paragraphs 2, 4, 5, 6, 7, 8 and 9 of plaintiffs’
amended complaint.
2. Defendants-intervenors deny the averments con
tained in paragraphs 1 and 3, except they admit prior
proceedings and decisions in this action as cited in
paragraph 1 but without plaintiffs’ commentary and
that pleadings and some evidence of record in this ac
tion have been on file at times in the District Court
18
and at times available for inspection and/or copying
by any interested party.
3. Defendants-intervenors deny all the averments
contained in paragraphs 10 through 17, subtitled Addi
tional Allegations to Conform to Evidence, except
they admit that certain fact issues have been tried
and determined by the District Court and that cer
tain interlocutory fact findings have been affirmed or
vacated by the Court of Appeals, and that school
districts exist and operate in Michigan pursuant to
state laws therefor made and provided, and that many
persons located in the City of Detroit are employed
and enjoy various services in said tri-county area be
yond the City of Detroit, and that many persons lo
cated in various places throughout said tri-county
area beyond the City of Detroit are employed and
enjoy various services in the City of Detroit.
WHEREFORE, the defendants-intervenors deny
that the plaintiffs are entitled to all or any of the
relief as prayed for by them in their amended com
plaint but admit that the plaintiffs are entitled to an
order or judgment of the Court implementing a de
segregation plan whereby the Detroit public schools
will be made to operate equitably as a unitary school
system,, which is to say a school system from which
no Detroit school child is effectively excluded by de
liberate state action from any Detroit public school
because of race, without however any additional inter
vening judicial enforcement of the compulsory trans
fer or transportation of any school children to the
Detroit public schools from public schools or places
beyond the City of Detroit.
COUNTERCLAIM
Defendants-intervenors, assuming that the plaintiffs
will agree that the restriction against a counterclaim
heretofore imposed on the defendants-intervenors is
no longer effective in the interests of the fair play
implicit in the Due Process Clauses of the Fifth and
Fourteenth Amendments, set forth their counterclaim
19
for declaratory relief against the plaintiffs pursuant
to 28 USC 2201 and 2202 as follows:
1. Defendants-intervenors James, Jack and Kath
leen Rosemary, by their Mother and Next Friend,
Evelyn G. Rosemary, and James and Evelyn G. Rose
mary, parents; Terri Doran, by her Mother and Next
Friend, Beverly Doran, and William and Beverly
Doran, parents; Edward and Michael Romesburg,
by their Father and Next Friend, Edward M. Romes
burg, Jr., and Edward M. and Marie Romesburg, Jr.,
parents; Diann, James and Colleen Blaszak, by their
Mother and Next Friend, Martha J. Blaszak, and Ray
mond J. and Martha J. Blaszak, parents; Diane,
Chester and Allan Pruss, by their Father and Next
Friend, Ronald Pruss, and Ronald and Hilda Pruss,
parents; Tracey and Gregory Arledge, by their Mother
and Next Friend, Aileen Arledge, and John and Aileen
Arledge, parents; Sheryl and Russell Paul, by their
Mother and Next Friend, Mary Lou Paul, and Duane
and Mary Lou Paul, parents; Shauna, Scot and Keith
Matthews, by their Father and Next Friend, Larry
Matthews, and Larry and Nancy Matthews, parents;
Deborah, Patricia and Denise Rossman, by their
Mother and Next Friend, Maryann Rossman, and
Thomas and. Maryann Rossman, parents; Tracy
Quigley, by her Mother and Next Friend, Janice
Quigley, and Daniel and Janice Quigley, parents; Ian,
Stephanie, Karl and Jaako Suni, by their Mother
and Next Friend, Shirley Suni, and Armas and Shirley
Suni, parents; Christopher and Scott Stefanko, by
their Mother and Next Friend, Marthanne Stefanko,
and Kenneth R. and Marthanne Stefanko, parents;
and Susan, Scott and Kristie Ferguson, by their
Mother and Next Friend, Sue M. Ferguson, and Samuel
F. and Sue M. Ferguson, parents, are all minor chil
dren and parents of minor children attending public
schools in the tri-county area of Wayne, Oakland
and Macomb counties other than public schools in
the City of Detroit which is co-terminus with the
defendant Detroit school district; and said minor chil
20
dren and their parents are all members of two classes
of persons so numerous that joinder of all such mem
bers in this counterclaim and action is impracticable,
to-wit: (1) all minor school children attending* public
schools in said tri-county area beyond the City of
Detroit where they reside, have homes, and family
life and are reared by their parents, and (2) all
parents of minor school children attending public
schools in said tri-county area beyond the City of
Detroit where they reside, have homes and family
life and rear their minor school children; and all the
individual defendants-intervenors make this counter
claim pursuant to FRCP Rule 23 on their own be
half and representatively for and on behalf of all
persons and members of the said classes similarly
situated throughout said tri-county area beyond the
City of Detroit; and there are common questions of
law and fact affecting the constitutional rights of
said minors and parents and the constitutional rights
of all persons and members constituting said classes;
and a common declaratory judgment is sought and
the defendants-intervenors will fairly and adequately
protect the interests of said classes; and the claims
of the defendants-intervenors are typical of the con
stitutional claims of said classes.
2. Defendant-intervenor Tri-County Citizens For
Intervention In Federal School Action No. 35257 is
a Michigan non-profit corporation formed, as shown by
Article II of Articles of Incorporation filed with the
Michigan Department of Treasury on October 26,1971,
for the following purpose:
To take all organizational and necessary legal
action to intervene representatively as a defend
ant in; Civil Action No. 35257, pending in the
United States District Court, Eastern District of
Michigan, Southern Division, for and on behalf
of all school children and all resident parents
who have children of school age in each and every
school district in Macomb County, Oakland County
and in Wayne County other than the City of De
21
troit, and in general to do all things in connec
tion therewith and incident thereto not forbidden
by the laws of the State of Michigan and with all
the powers conferred upon non-profit corporations
by the State of Michigan.
3. The individual plaintiffs represent two classes
of persons, to-wit: (1) all school children in the City
of Detroit, and (2) all Detroit resident parents who
have children of school age; and plaintiff National
Association For The Advancement Of Colored People,
Detroit Branch, is an unincorporated association,
which sues on behalf of its membership who are mem
bers of the plaintiff classes.
4. A case of actual constitutional controversy has
arisen and exists between the defendants-intervenors
and the plaintiffs, to-wit:
(a) the defendants-intervenors say and claim
that school children and their parents residing through
out the tri-county area of Wayne, Oakland and Macomb
counties beyond the City of Detroit and having homes
and family life, including parental child-rearing and
attendance at unitary public school systems through
out said tri-county area, peaceably and lawfully enjoy
such fundamental liberty and privacy rights as will
be encroached upon, abridged, infringed and violated
by any state-compelled or federal-compelled transfer
or transportation of said school children to the Detroit
public schools for any so-called ‘ limited’ remedial
purpose of eliminating or balancing the racial identity
of Detroit public schools or making the same operate
as a unitary Detroit school system or otherwise, the
said fundamental liberty and privacy rights of resi
dence, home, family life, parental child-rearing and
attendance at unitary public school systems through
out the said tri-county area being retained by the
people as provided by the Ninth Amendment and be
ing within the zones of fundamental liberty and
privacy rights guaranteed by the First, Fourth and
Fifth Amendments and by the Due Process Clause of
the Fourteenth Amendment; whereas to the contrary-
on information and belief
(b) the plaintiffs say and claim that said school
children and their said parents neither have nor en
joy any such said fundamental liberty and privacy
rights or, if they do have and enjoy such said funda
mental liberty and privacy rights or some of them, the
same will not be encroached upon, abridged, infringed
or violated by a state-compelled or federal-compelled
transfer and transportation of said school children, or
a certain number of them selected at random from
public schools and places throughout the said tri
county area beyond the City of Detroit, to the Detroit
public schools for a so-called ‘ limited’ remedial pur
pose of eliminating or balancing the racial identity of
Detroit public schools or making the same operate as
a unitary Detroit school system or otherwise.
WHEREFORE, defendants-intervenors respectfully
claim and request an appropriate judgment of the
Court declaring the respective and relative constitu
tional rights of the defendants-intervenors and the
plaintiffs, more particularly:
A. That the Court enter an appropriate class ac
tion order as requested by the defendants-intervenors.
B. That the Court order a timely hearing of this
counterclaim for declaratory relief.
C. That the Court enter a judgment declaring that
the individual defendants-intervenors and the classes
of persons of which the individual defendants-inter
venors are members do jointly and severally have and
peaceably and lawfully enjoy fundamental liberty and
privacy rights of residence, home, family life, parental
child-rearing and attendance at unitary public school
systems throughout the said tri-county area beyond
the City of Detroit as retained by the people as pro
vided by the Ninth Amendment and within the zones
of fundamental liberty and privacy rights guaranteed
by the First, Fourth and Fifth Amendments and by
the Due Process Clause of the Fourteenth Amend
ment.
D. That the Court enter a judgment declaring that
the said fundamental liberty and privacy rights will
be encroached upon, abridged, infringed and violated
by any state-compelled or federal-compelled transfer
or transportation of school children to the Detroit
public schools from public schools and places in said
ti*i-county area beyond the City of Detroit for a so-
called ‘ limited’ remedial purpose of eliminating or
balancing the racial identity of Detroit public schools
or making the same operate as a unitary Detroit
school system or otherwise as may be claimed and re
quested by the plaintiffs.
E. That the Court grant the defendants-intervenors
such other and further relief as the Court may deem
appropriate and proper pursuant to 28 USC 2202.
Robert J. Lord
Attorney for Defendants-intervenors
Kerry Green, et al.”
and the following supporting memorandum of law:
MEMORANDUM OF L A W IN SUPPORT OF RE
SPONSIVE PLEADING B Y DEFENDANTS-
INTERVENORS K ER R Y GREEN, ET AL.
“ The defendants-intervenors Kerry Green, et al.,
submit the following memorandum of law in support of
their responsive pleading to the plaintiffs’ amended
complaint to conform to evidence:
The Supreme Court does not sit as a super-legisla
ture to determine the wisdom, need, and propriety of
laws that touch economic problems, business affairs,
or social conditions. Mr. Justice Douglas delivering
the opinion of the Court in Griswold v. Connecticut,
381 U.S. 479, 482.
The child is not the mere creature of the State and
the fundamental right of parents to educate their
24
children as they choose is made applicable to the
States by the force of the First and Fourteenth
Amendments. Pierce v. Society of Sisters, 268 U.S.
510, 535; Griswold v. Connecticut, supra, at 482.
School children are “ persons” within the meaning
of the Bill of Bights and they are possessed of funda
mental rights which the State must respect. Tinker
v. Des Moines School District, 393 U.S. 503, 511; Mr.
Justice Douglas dissenting in part in Wisconsin v.
Yoder, 406 U.S. 205, 243.
Neither the Fourteenth Amendment nor the Bill of
Rights is for adults alone. In Re Gault, 387 U.S. 1,13.
The makers of the Constitution conferred upon in
dividuals, as against the Government, the right to he
let alone — the most comprehensive of rights and
the right most valued by civilized men. To protect
that right, every unjustifiable intrusion by the Govern
ment upon the privacy of the individual, whatever the
means employed, must be deemed a violation of the
Fourth Amendment. Mr. Justice Brandeis dissent
ing in Olmstead v. United States, 277 U.S. 438, 479.
Without doubt, liberty as guaranteed by the Con
stitution denotes more than mere freedom from bodily
restraint and includes, among other things, the right
of the individual to marry, establish a home and bring
up children and generally to enjoy those privileges
long recognized at common law as essential to the
orderly pursuit of happiness of free men. Meyer v.
Nebraska, 262 U.S. 390, 399.
Although the Court has not assumed to define
‘ liberty’ with any great precision, that term is
not confined to mere freedom from bodily restraint.
Liberty under law extends to the full range of conduct
which the individual is free to pursue. Bolling v.
Sharpe, 347 U.S. 497, 499.
The specific guarantees in the Bill of Rights have
penumbral zones of guaranteed liberties and privacies
protected as much from governmental invasion as the
25
The language and history of the Ninth Amendment
reveal that the framers of the Constitution believed
that there are additional fundamental rights, protected
from governmental infringement, which exist along
side those fundamental rights specifically mentioned
in the first eight constitutional amendments. The
Ninth Amendment reads, “ The enumeration in the
Constitution, of certain rights, shall not be construed
to deny or disparage others retained by the people.”
Mr. Justice Goldberg, joined by Mr. Chief Justice
Warren and Mr. Justice Brennan, concurring in Gris
wold v. Connecticut, supra, at 488.
Any child, white or black, who is compelled to leave
his neighborhood and spend significant time each day
being transported to a distant school suffers an im
pairment of his liberty and privacy. Mr. Justice
Powell concurring in part and dissenting in part in
Keyes v. School District No. 1, Denver, Colorado, —
U.S....... (slip opinion June 21, 1973, separate opinion
of Mr. Justice Powell at page 32).
Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are
beneficent. Olmstead v. United States, supra, at 479.
When remedial desegregation orders extend to the
transportation of students, the full burden of the af
firmative remedial action is borne by children and
parents who did not participate in any constitutional
violation. K eyes v. School District No. 1, Denver,
Colorado, supra, separate opinion of Mr. Justice
Powell at page 34.
Respectfully submitted,
Robert J. Lord
Attorney for Defendants-Intervenors
Kerry Green, et al.”
specific guarantees. G risw old v. C onnecticu t, supra,
484-486.
26
Respondents Bradley have not yet filed a reply to the re
spondents ’ counterclaim against them, perhaps yet rely
ing upon the District Court’s March 15, 1972 intervention
restrictions (Ia204).
On November 2, 1973, petitioners Milliken filed their re
sponsive pleading (including six affirmative defenses) to
the amended complaint of respondents Bradley.
Some 25 other defendants have filed responsive pleadings
to the amended complaint; and some 15 motions have been
filed concerning said amended complaint.
The Honorable Stephen J. Roth is well and is a trial
judge well able to hear and determine to a final decision all
fact and law issues which have been and can be presented
to the District Court, the respondents Bradley conceding
in their memorandum in opposition to petitions for writs
of certiorari (Page 3, Footnote 2) that the District Court
is not foreclosed from hearing and determining any fact
or law issue presented in this action.
The President of the Michigan Senate and the Speaker
of the Michigan House of Representatives having over
looked advising Members of the Legislature of petitioner
Kelley’s August 20, 1973 correspondence, respondent Tri-
County Citizens For Intervention In Federal School Ac
tion No. 35257 sponsored and on November 1, 1973 pre
sented jointly to said President and Speaker the following
petition signed by some 18,000 Michigan citizens:
“ We, the people of the State of Michigan, petition
the Legislature to hold public hearings concerning the
following rights of Liberty and Privacy guaranteed by
the United States Constitution:
First, the rights of all Michigan parents to have
their children attend neighborhood schools.
Second, the rights of suburban school children
against compulsory transfer or transportation to De
troit public school.”
On November 8, 1973, Senator Patrick McCollough to
gether with a majority of other Senators offered the follow
ing Senate Concurrent Resolution No. 232:
“ A concurrent resolution creating a special or se
lect committee to hold public hearings to study the
27
facts, circumstances and implications of Bradley v.
Milliken, Federal Civil Action No. 35257, as such civil
action may or may not immediately or ultimately in
volve the Michigan Legislature, and to study the po
tential impact and the ramifications of cross district
busing of school children.
Whereas, On June 12, 1973 in the Detroit school
desegregation case known as Bradley v. Milliken,
which is Federal Civil Action No. 35257, pending now
on remand, before IT. S. District Judge Stephen J.
Both, the 6th Circuit Court of Appeals issued an opin
ion, where the six judges said, page 65: “ If school
boundary lines cannot be changed for an unconstitu
tional purpose, it follows logically that existing bound
ary lines cannot be frozen for an unconstitutional pur
pose.” , and a page 68: “ If, however, the Legislature
fails to act, or if it acts in a manner inconsistent with
the expeditious and efficient elimination of the uncon
stitutional practices and conditions described in this
opinion, the District Court shall proceed to fashion
such a remedy, including an interim remedy if found
to be necessary, as it shall determine to he appropri
ate within the guidelines of this opinion.” , and at
pages 79-80: “ This opinion heretofore has empha
sized that the Legislature of Michigan has an oppor
tunity to determine the organizational and govern
mental structure of an enlarged desegregation area to
remedy the unconstitutional segregation results set
forth in this opinion. In the event the Legislature
fails to act effectively and expeditiously, the forego
ing and other cases cited in this opinion outline the
broad scope of equitable relief that may be fashioned
by the District Court in this case on remand after all
school districts to he affected are afforded an oppor
tunity to he heard as hereinabove provided.” ; and
Whereas, Notwithstanding that no Federal court
sits as a super legislature to determine the wisdom,
need or propriety of state laws, it appears from afore
said language that the 6th Circuit Court of Appeals
anticipates that the Michigan Legislature will fail to
2 8
act as ambiguously indicated and that such a so-called
‘ failure’ will be construed as ‘ freezing’ existing school
district boundary lines and that a so-called ‘ freezing’
will be construed as a violation of the equal protection
clause of the 14th amendment to the U. S. Constitu
tion, thereby providing an otherwise missing legal
theory to justify the compulsory transfer or transpor
tation of numerous suburban school children to Detroit
public schools by Federal court order; and
Whereas, A certain petition, to wit,
“ We, the people of the State of Michigan, peti
tion the Legislature to hold public hearings con
cerning the following rights of liberty and priv
acy guaranteed by the U. S. Constitution:
First, the rights of all Michigan parents to
have their children attend neighborhood public
schools.
Second, the rights of suburban school children
against compulsory transfer or transportation
to Detroit public schools” ,
was signed by some 18,000 persons and presented
jointly to the Honorable William J. Ryan and to the
Honorable James H. Bricldey on November 1, 1973;
and
Whereas, The Bill of Rights of the Michigan Consti
tution of 1963, Article 1, Section 3, not only guarantees
the people the right to petition for redress of griev
ances but also to instruct the representatives; and
Whereas, There appears to exist a certain strategic
confrontation involving the Federal Judiciary and
the Michigan Legislature, and the Michigan Legisla
ture requires a complete knowledge of the facts, cir
cumstances and implications of said Civil Action No.
35257, and
Whereas, It is incumbent upon the Michigan Legis
lature to investigate and study the general potential
29
effects of busing and to determine the attitude of the
public on the busing issue to ascertain whether mas
sive busing would produce the results sought by its
advocates, or if, indeed, it would lead to a worsening,
rather than an improvement, in race relations; now
therefore be it
Resolved by the Senate (the House of Representa
tives concurring), That there is created a special com
mittee of the Legislature, to consist of a maximum of
five members from each chamber, Senate members to
be appointed by the President of the Senate and mem
bers of the House to be appointed by the Speaker, to
function during the 1973-74 Regular Sessions of the
Legislature, and until December 31, 1974, to study the
potential impact and ramifications of cross-district
busing of school children, and to report its findings
and recommendations to the 1975 Legislature; and be
it further
Resolved, That the committee may subpoena wit
nesses, administer oaths, and examine the books and
records of any person, partnership, association, or
corporation, public or private, involved in a matter
properly before the committee; and may call upon the
services and personnel of any agency of the state and
its political subdivisions; and may engage such as
sistance as it deems necessary; and be it further
Resolved, That the committee may employ such con
sultants, aides, and assistants as it deems necessary
to conduct its study; the committee may call upon the
Legislative Service Bureau, subject to approval of the
Legislative Council, for such services and assistance
as it deems necessary and may request information
and assistance from state departments and agencies;
and be it further
Resolved, That the members of the committee shall
serve without compensation, but shall be entitled to
actual and necessary travel and other expenses incur
red in the performance of official duties, the expenses
of the members of the Senate not to exceed $5,000.00
30
and the expenses of the members of the House to be
paid from the appropriations to the House of Repre
sentatives.
Pursuant to rule 32, the concurrent resolution was
referred to the Committee on Senate Business.”
On November 14, 1973, the Committee on Senate Busi
ness reported favorably concerning Senate Concurrent
Resolution No. 232 and the same was unanimously adopted
by the Michigan Senate.
House action concerning Senate Concurrent Resolution
No. 232 has not yet been reported out of committee.
A R G U M E N T
PETITIONERS MILLIKEN HAVING FILED THEIR
R E S P O N S I V E P L E A D IN G TO THE BRADLEY
RESPONDENTS’ AMENDED RIGHT AND REMEDY
COMPLAINT NOW PENDING FOR TRIAL BEFORE THE
DISTRICT COURT, THE RESPONDENTS RESPECTFULLY
SUBMIT THAT THE WRITS OF CERTIORARI SHOULD
BE DISMISSED AS IMPROVIDENTLY GRANTED AND
THAT THE ENTIRE ACTION BE REMANDED TO THE
DISTRICT COURT FOR TRIAL DETERMINATION OF
ALL JUSTICIABLE FACT AND LAW ISSUES PRESENTED
O R, A L T E R N A T I V E L Y , T H A T THE WRITS BE
POSTPONED PENDING REMAND OF THE ENTIRE
ACTIO N FOR TRIAL DETERMINATION OF ALL
JUSTICIABLE FACT AND LAW ISSUES PRESENTED
AN D A DIR ECT APPEAL PERMITTED TO THIS
SUPREME COURT BY-PASSING THE SIXTH CIRCUIT
COURT OF APPEALS.
To borrow from historian Daniel Boorstin (The Ameri
cans, The National Experience, Vintage Books, 1965, p.
221), the alternative suggestion of a so-called ‘metropolitan
remedy’ to ‘ desegregate’ the student populations of all
Detroit public schools was horn (46a, the District Court’s
November 5, 1971 order) without ever having been con
ceived, and the only continuing resource of the four piece
meal theories proposed to justify the suggested compulsory
31
transfer and transportation of respondent children to
Detroit public schools has been vagueness.
The first ‘Rule 19(a)(1)’ theory proposed on July 16,
1971 (Iall9) never materialized, the improvident inter
vention of assorted petitioner school districts merely con
fusing and prolonging proceedings.
The second ‘ equity’ theory (48a, the District Court’s
March 24, 1972 ruling) will remain vacated until this
Court revolutionizes the remedial import of Brown II.
The 40-day existence of the third ‘ big city school systems
for blacks surrounded by suburban school systems for
whites cannot represent equal protection of the law’
theory was hopelessly untenable.
Before the District Court now, respondents Bradley have
embraced the fourth ‘ legislative-if’ theory, it already ap
pearing to respondents however that there is not the slight
est likelihood that the District Court will grant the Bradley
respondents’ motion to require submission of proposals
to legislature and that prudence will dictate that they fore
go even so much as noticing that motion for hearing.
Ironically, until recently filing their respective motions
and pleadings in the District Court, neither the respondents
Bradley nor the petitioners Milliken contributed anything
to the first impression remedy question now again at bar
for trial in the District Court, and the respondent children
and parents have relied and will rely upon themselves and
not at all upon their litigant public officials.
The only order (106a, the District Court July 11, 1972
order for acquisition of transportation) construed by the
Court of Appeals to be a final order (112a) has been va
cated, and the District Court’s September 27, 1971 (17a)
and March 28, 1972 (53a) ruling affirmed on 28 U.S.C.
\ 1292(b) appeal are still interlocutory.
At page 3, footnote 2, of the Bradley respondents’ memo
randum in opposition to petitions for writs of certiorari,
they fairly concede that the District Court may, can and
should hear and determine constitutional violation as well
as remedial questions as presented in trial proceedings
now pending before the District Court.
Nothing inhibits or prohibits the District Court from
entertaining, hearing and determining any justiciable fact
or law issue presented by the petitioners, the respondents,
or the numerous defendants recently joined.
Nor, more particularly, does anything inhibit or pro
hibit the District Court from applying correct equitable
standards of converting all or any remaining part of a
Detroit dual school system to a unitary system, which is
to say a public school system from which no child is
effectively excluded because of race or color, as defined
by this Court in Alexander v. Holmes County Board of
Education, 396 U.S. 19, 21 (1969).
The petitioners Milliken might well have heeded Robert
Frost’s admonition that the only way around a thing is
through it and long ago voluntarily submitted to the Dis
trict Court, for moral if not other reasons, a plan for
converting any remaining dual Detroit public school to a
public school from which no child is effectively excluded
because of race or color; and respondents have not and
will not share in or support circuitous litigation by the peti
tioners tor tnemseives Tn their own behalf and not at all
for or on behalf of the respondent children and parents.
The Bradley respondents’ September 4, 1973 amended
complaint (Ia291), both in substantive import and by court
rule (Rule 15(c), Fed. R. Civ. P.), relates back to the
date of the complaint commencing this action (la and
IalO).
Respondents may disagree with the District Court but
they have not the slightest apprehension that the Dis
trict Court (the Honorable Shephen J. Roth) will fail
fairly and truly to hear and determine their pleaded
affirmative defenses and counterclaim for declaratory judg
ment ; and if respondents Bradley would acknowledge that
the March 15, 1972 intervention restrictions (Ia204) axe
inoperative and kindly file their reply to respondents’
counterclaim, the fourth theory vaguely proposed con
tingently to justify a suggested transfer and transporta
tion of respondent children to Detroit public schools could
be laid to rest and the wholly unnecessary traumatization of
public emotions concerning this case be ended.
33
CONCLUSION
Wherefore, respondents submit that the state of this
case and the economy of appellate judicial energies weigh
all in favor of remand to the District Court for trial deter
mination of all fact and law issues presented; and because
of valuable time already lost, this Court may want to con
sider permission of direct appeal by-passing the Court
of Appeals.
Respectfully submitted,
R o b e r t J . L o r d
Attorney fo r Respondents
K erry Green, et al.
8388 Dixie Highway
Pair Haven, Michigan 48023
w
IN THE
SUPREME COURT UF THE UNITED STATES
January T erm , 1974
No. 73-434
RONALD B R AD LE Y , et al. ,
P etition ers ,
v s .
WILLIAM G. M ILLIKEN, et a l. ,
R espondents.
ON A P P E A L FROM
THE SIXTH CIRCUIT COURT OF A PPE ALS
MOTION FOR LEAVE TO FILE BRIEF
AMICUS CURIAE AND BR IE F OF NATIONAL
SUBURBAN LEAGUE, L T D ., AMICUS
CURIAE, IN SUPPORT O F PETITIONERS
HAROLD H. FUHRMAN
4455 W est B rad ley Road
M ilwaukee, W isconsin 53223
Attorney for A m icus Curiae
National Suburban League, Ltd.
F ebruary 19 1974
IN THE
SUPREME COURT OF THE UNITED STATES
January T e r m , 1974
N o. 7 3 -4 3 4
RONALD B R A D L E Y , et a l. ,
v s .
P e t it io n e r s ,
W ILLIAM G . M ILL IK E N , et a l. ,
R e sp o n d e n ts .
ON A P P E A L FRO M
THE SIXTH CIR C U IT C O U R T O F A P P E A L S
M OTION FO R L E A V E TO F IL E B R IE F
AM ICUS CU RIAE AND B R IE F FO R
N A TIO N A L SUBURBAN L E A G U E , L T D .,
AS AM ICUS CU RIAE * 1
TO: THE SU PRE M E CO U RT O F THE UNITED
STA TE S.
H AROLD H. FUHRM AN r e s p e c t fu lly m oves
for an o rd e r granting lea v e to fi le a b r ie f am icu s
curiae in the a b o v e -e n tit le d c a s e pursuant to R ule
42 of the R e v is e d R u les o f this C ou rt. C on sen t o f
the p e tition ers and resp on d en ts has b een re fu se d .
1. M ovan t's in te re s t in the c a s e i s : the N a
tional Suburban L eagu e, Ltd. , is a n o n -p r o f it
corp ora tion d ed ica ted to the autonom y o f suburban
m u n ic ip a litie s and th e ir con stitu en ts . If the ruling
b e low is upheld , a s e r io u s b low w ill be d ea lt to
lo c a l h om e ru le and s e lf-g o v e r n m e n t . The bound
a r ie s o f the s c h o o l d is t r ic t s in v o lv ed a re coterminus
w ith the b ou n d a ries o f the re la te d m u n ic ip a litie s .
The autonom y o f the p eop le o f the suburban m unici
p a lit ie s w ou ld b e in fr in g ed in v io la t io n o f the 10th
A m endm ent to the F e d e ra l C on stitu tion .
2. The M ovant w ill b r i e f the fo llow in g issues:
I. W hether the o rd e r o f the D is tr ic t
C ou rt, a ffirm e d in p art b y the Sixth C ircu it
C ou rt o f A p p ea ls , is a p ro p e r e x e r c is e o f its
ju d ic ia l a u th ority?
II. W hether such an o rd e r is appropriately
d ire c te d at the defendants in this ca u s e ?
III. W h eth er, absen t a show ing o f de jure
s e g re g a tio n , qu alita tive and quantitative equality
in edu cation w ill be m andated?
3. A m icu s cu r ia e w ill b en e fit the C ou rt by
expla in ing fou r a re a s o f law w h ich , to its know l
ed g e , w ill not be o th erw ise d isp o se d o f in other
b r ie fs . The f i r s t a rea o f law is that the p rob lem at
is su e is not one w hich m ay be d e term in ed by the
ju d ic ia ry w hen a le g is la t iv e re m e d y is p o ss ib le .
The se con d a rea o f law is that as such s ch o o l d is
tr ic ts a re not m ade an au tom atic a rm o f the state
ce r ta in ly no co u r t m ay so m ake them . The third
a rea o f law is that no de ju re d is cr im in a tio n has
been show n. A bsen t such a show ing the co u r t has
n ev er ru led in fa v o r o f esta b lish in g actu a l equality
as a ru le o f law . No co n s c io u s b a la n cin g o f either
quantitative or qu alita tive equ ality has b een a t
tem pted by the C ou rt. The fourth a rea o f law is the
reservation o f righ ts to the states and the p eop le
under the Tenth A m en dm en t. T h is A m en dm en t to
the F e d e ra l C on stitu tion is the c o r n e r s to n e o f lo c a l
autonomy fo r sta tes and m u n ic ip a litie s w h ich m u st
be ack n ow ledged and r e v ita liz e d . Thus a m icu s
curiae w ill be o f su bstan tia l a id in a d eterm in a tion
of the c a s e at law .
D ated F e b ru a ry 19, 1974.
/ s / H a ro ld H. F uhrm an_____________
H a ro ld H. F uhrm an
4455 W est B ra d le y R oad
M ilw au kee , W isco n s in , 53223
A ttorn ey fo r A m icu s C u r ia e ,
N ational Suburban L eagu e , Ltd.
1
T A B L E OF CO N TE N TS
Page
Table o f A u th o r it ie s ..................................................... ii
In tro d u ctio n --In te re s t o f A m icu s
C u r ia e ................................................................................... 1
Q uestions P r e s e n t e d ....................................................... 3
Statement o f the C a s e ..................................................... 4
A r g u m e n t :.............................................................................. 4
I.
THE ORDER OF THE D ISTRICT
COURT IS NOT A P R O P E R E X E R
CISE OF ITS JU D ICIAL A U T H O R IT Y ....................... 4
A. TH A T PO R TIO N O F THE ORDER
D EALIN G W ITH IN T E R -D IS T R IC T
BUSSING IS A D ERO G ATIO N OF
THE C O N STITU TIO N A L P R IN
C IP L E OF S E P A R A T IO N OF
PO W E R S, IN TH A T IT IS A
JU D ICIAL E N C R O A C H M E N T
ON A L E G IS L A T IV E F U N C T IO N .................. 4
B. THE ISSUE OF IN T E R -D IS T R IC T
BUSSING IS A N O N -JU ST IC IA B L E
P O L IT IC A L Q U E S T IO N ........................................... 8
XI
II.
PM _e
THE ORDER OF THE D ISTR IC T CO U RT
IS IN A P P R O P R IA T E IN T H A T IT IS
D IR E C T E D A T P A R T IE S WHO A RE
W ITH OUT THE A U T H O R IT Y T O C O M
P L Y WITH THE O R D E R ..................................................17
III.
A BSEN T A SHOWING OF DE JURE
S E G R E G A T IO N --E R R O N E O U S L Y
FOUND BY THE SIXTH CIR C U IT
CO U RT O F A P P E A L S --T H IS CO U RT
W IL L N OT R E -B A L A N C E THE RIGH TS
OF P A R T IE S TO ACH IEVE E ITH E R A
Q U A N TIT A TIV E OR A Q U A L IT A T IV E
E Q U A L IT Y ............................................................................. 18
C o n c lu s io n ............................................................................. 32
T A B L E OF AU TH O RITIES
'C a s e s (F e d e ra l)
B ak er v . C a rr
369 U .S . 186 (1 9 6 2 ) ......................................................... 13
B ra d le y v . M illik en
484 F . 2d 215 (6th C ir . 1973 )____ 4, 17, 20, 23, 25
B ra d ley v . S ch oo l B oa rd o f the C ity o f
R ich m on d
462 F. 2d 1058 (4th C ir . 1972).................. 16, 17, 18
B row n v . B oa rd o f E ducation
347 U .S . 483 (1954) ............................................. 18, 22
I l l
P a g e
C olegrove v . G reen
328 U .S . 549 ( 1 9 4 6 ) ......................................
Dandridge v . W illia m s
397 U .S . 471 (1 9 7 0 ) ......................................
Deal v . C in cin n ati B oa rd o f
Education
369 F . 2d 55 (6th C ir . 1 9 6 6 ) ....................
Deal v . C in cin n ati B oa rd o f
Education
419 F . 2d 1387 (6th C ir . 1 9 6 9 ) ...............
D etroit E d ison C o . v . E a st China
Township S ch oo l D is t r ic t N o. 3
247 F . Supp. 296 (E . D . M ich . 1965) . . . ............... 9
Detroit E d ison C o. v . E ast China
Township S ch oo l D is t r ic t N o. 3
378 F . 2d 225 (6th C ir . 1 9 6 7 ) ....................
G om illion v . L ig h tfoo t
364 U .S . 339 ( I 9 6 0 ) ......................................
Hunter v . C ity o f P ittsbu rgh
207 U .S . 161 (1 9 0 7 ) ........................................
Hunter v . E r ic k s o n
393 U .S . 385 (1 9 6 9 )........................................
James v . V a lt ie r ra
402 U .S . 137 (1970) 27, 28, 29
IV
K eyes v . S ch oo l D is tr ic t N o. 1,
D en v er , C o lo .
413 U .S . 189 ( 1 9 7 2 ) .................................................... 21
Knapp v . S ch w eitzer
357 U .S . 371 (1 9 5 8 ).................................... 32
L in d sey v . N orm et
405 U .S . 56 (1 9 7 2 ) ......................................................... 28
New O rleans W aterw ork s C o . v .
New O rleans
164 U .S . 471 (1 8 9 6 )........................................ .............. 32
R eitm an v . M ulkey
387 U .S . 369 (1 9 6 7 )............................................. 25, 27
R eyn old s v . S im s
377 U .S . 533 (1 9 6 4 )...................................................... 14
San A nton io S ch oo l D is tr ic t v .
R od r ig u ez
411 U .S . 1 (1 9 7 2 ) .......................................... 18, 28, 30
S parrow v . G ill
304 F . Supp. 86 (M .D . N .C . 1969) . . . . . ____ 6, 7
S pen cer v . K u gler
326 F .S u p p . 1235
(D. N. J. 1 9 7 1 ) ......................................................... 21, 23
S pen cer v . K u gler
404 U .S . 1027 (1 9 7 2 ) ........................................ 21, 23
S trick lan d v . Burns
256 F. Supp. 824 (M .D . Tenn. 1 9 6 6 ) .................... 15
P a g e
V
Swann v . C h a r lo tte -M e ck le n b u rg
Board o f E du cation
402 U .S . 1 (1 9 7 1 ) .................................................. 21, 24
United States v . B u tler
297 U .S . 1 (1 9 3 6 ) ............................................................ 32
Walla W alla v . W alla W alla W ater
Co.
172 U .S . 1 (1 8 9 8 ) ............................................................ 32
Wright v . C ou n cil o f the C ity o f
Em poria
407 U .S . 451 (1 9 7 2 ) ................................................ 24 , 29
Cases (State)
Kent C ounty B oa rd o f E ducation
v. Kent C ounty T ax A llo ca t io n B oa rd
350 M ich . 327, 86 N .W . 2d 277 (1 9 5 7 ) ............... 9
Marathon S ch oo l D is t r ic t N o. 4 v .
Gage
39 M ich . 484 ( 1 8 7 8 ) ....................................................... 9
School D is t r ic t o f C ity o f L ansing v.
State B oa rd o f E ducation
367 M ich . 591, 116 N .W . 2d 866
(1 9 6 2 ) .............................................................................. 5, 14
Secondary A u th ority
16 C . J .S . "C on stitu tion a l L aw "
S ec. 104 (1 9 5 6 ) ........................................................... 5
S ec. 1 0 7 .......................................................................... 6
S e c . 1 4 4 .......................................................................... 7
S ec. 1 4 5 .......................................................................... 8
S ec. 1 5 1 .......................................................................... 6
Page
IN THE
SUPREME COURT OF THE UNITED STATES
January T e r m , 1974 N O . 7 3 -43 4
RONALD B R A D L E Y , et a l. ,
v s .
P e t it io n e r s ,
W ILLIAM G . M ILL IK E N , et a l. ,
R e sp o n d e n ts .
ON A P P E A L FR O M
THE SIXTH C IR C U IT CO U RT O F A P P E A L S
B R IE F O F
N A T IO N A L SUBURBAN L E A G U E , L T D .,
AM ICUS C U R IA E ,
IN S U PP O R T O F PE T IT IO N E R S
IN TRO D U CTIO N
In te re s t o f A m icu s C u ria e
The N ational Suburban L ea g u e , L td . , is a n on
profit c o r p o r a t io n w h ich e x is ts fo r the e x p re s s p u r
pose o f a rticu la tin g the n eeds o f suburban m u n ic i
p a lities . Its m o s t im p orta n t ch a r te r fu n ction s a r e :
(a) to p r e s e r v e and sa feg u a rd the in d ep en d en ce ,
in tegrity , and h om e ru le o f suburban m u n ic ip a litie s
2
aga in st a ll fo r m s o f m etrop o lita n en croach m en t;
(b) to p r o te c t h is t o r ic s o u r c e s o f reven u e fo r sub
urban g ov ern m en t; (c) to k eep lo c a l govern m en t
c lo s e , r e s p o n s iv e , im p orta n t, and m ean in gfu l to
its c it iz e n s ; (d) to p ro v id e a c o l le c t iv e v o ic e fo r all
suburban c it iz e n s b e fo r e state and n ation al g o v
e rn m en ts ; and (e) to fo s te r in te r -m u n ic ip a l c o
op era tion , e s p e c ia lly am ong suburban m unicipalities.
If the ru lin g b e lo w is upheld , a s e r io u s b low
w ill b e d ea lt to lo c a l h om e ru le and se lf-govern m en t.
The b ou n d a ries o f the s c h o o l d is t r ic t s in v o lv ed are
co te rm in u s w ith the b ou n d a ries o f the re la te d muni
c ip a lit ie s . The autonom y o f the p eop le o f the sub
urban m u n ic ip a litie s w ou ld b e in fr in g e d in violation
o f the 10th A m en dm en t to the F e d e r a l C onstitution .
3
QUESTIONS P R E SE N TE D
I. W hether the o rd e r o f the D is t r ic t C ou rt,
a ffirm ed in p art b y the Sixth C ir c u it C ou rt o f A p
pea ls, is a p ro p e r e x e r c is e o f its ju d ic ia l a u th ority ?
II. W hether such an o rd e r is a p p ro p r ia te ly
d ire cted at the defendants in th is ca u s e ? III.
III. W h eth er, absen t a show ing o f de ju re
seg reg a tion , qu a lita tive and quantitative equ ality
in edu cation w ill b e m andated?
4
S T A T E M E N T O F THE CASE
The C ir c u it C ou rt o f A p p ea ls fo r the Sixth C ir
cu it has a p a rt o f its op in ion re p o r te d in B ra d ley v .
M illik e n , 484 F . 2d 216 (6th C ir . 1973), a ffirm ed
the o rd e r o f the D is t r ic t C ou rt in this m a tte r , 345
F . Supp. 914, that a D e tro it m e tro p o lita n a rea d e
se g re g a tio n plan b e d ev e lo p e d in o r d e r to integrate
the D e tro it s c h o o l s y s te m . Such a plan w ou ld in
v o lv e the in t e r -d is t r ic t b u ss in g o f students between
the D e tro it s c h o o l d is t r ic t and up to m o r e than fifty
suburban d is t r ic t s . The finding o f de ju r e d is c r im
ination m ade b y the D is t r ic t C ou rt w as upheld . The
d is cr im in a tio n ch a rg e d w as fr o m a lle g e d g e r r y
m an d erin g o f s c h o o l d is t r ic t s , h ou sin g p attern s and
s ite s e le c t io n o f s c h o o ls .
A R G U M E N T
I.
THE O RD ER O F THE D ISTR IC T CO U RT IS NOT A
P R O P E R E X E R C ISE O F ITS JU D IC IA L AUTHORITY.
A . TH A T PO RTIO N O F THE O RD ER DEALING
W ITH IN T E R -D IS T R IC T BUSSING IS A D E
RO G ATIO N O F THE C O N STITU TIO N A L PRIN
C IP L E O F S E P A R A T IO N O F PO W E R S, IN
TH A T IT IS A JU DICIAL E N C RO AC H M E N T
ON A L E G ISL A T IV E FU N C TIO N .
The o rd e r o f the D is tr ic t C ou rt, a ffirm e d by
the Sixth C irc u it C ou rt o f A p p ea ls i s , in e ffe c t ,
id e n tica l to an o rd e r in g o f the co n so lid a t io n of
s ch o o l d is t r ic t s or the re v is in g o f s c h o o l d is tr ic t
bou n d ary l in e s . Such an o rd e r i s , in the State of
M ich igan , w ith in the e x c lu s iv e p ow er o f the state
5
leg is la tu re . The M ich igan Suprem e C ourt has
c lea r ly e s ta b lish ed th is p ro p o s it io n , as shown by
its language in S ch oo l D is tr ic t o f L an sin g v. State
Board o f E d u ca tion , 367 M ich . 591, 595, 116 N. W.
2d 866 (1962):
Unlike the d e lega tion o f o th er p o w e rs by the
le g is la tu r e to lo c a l g ov ern m en ts , edu cation is
not in h eren tly a part o f the lo c a l s e l f -g o v e r n
m ent o f a m u n ic ip a lity ex cep t in so fa r as the
le g is la tu r e m ay ch o o se to m ake it such . C on
t r o l o f ou r p u b lic s ch o o l sy s te m is a State
m atter d e lega ted and lod ged in the State l e g i s
la tu re by the C onstitu tion .
An attem pt by the ju d ic ia r y to a ff irm a t iv e ly
order the a lte ra tio n o f s c h o o l d is t r ic t b o u n d a r ie s ,
e ffe c t iv e ly i f n ot e x p lic it ly in this c a s e , thus in
fringes on the p ro v in c e o f the le g is la tu r e . W hether
it is a state or fe d e r a l c o u r t w h ich attem pts to do
this is im m a te r ia l; the e f fe c t is the sa m e , and the
e ffect is one c a r e fu lly gu arded a ga in st in this co u n
try, as poin ted out in 16 C . J . S. "C on stitu tion a l
Law" S ec . 104 at 483 (1956):
The se p a ra tion o f g ov ern m en ta l p ow ers
in to le g is la t iv e , e x e cu tiv e , and ju d ic ia l is p r o
v id ed fo r in p r a c t ic a lly a ll the A m e r ic a n state
co n stitu tio n s , and su ch p r o v is io n s , in th e o ry ,
e f fe c t an a bso lu te sep a ra tion o f th ese d e p a r t
m en ts . Indeed, con stitu tion a l gov ern m en t in
the U nited States is d istin gu ish ed b y the c a r e
that has b een e x e r c is e d in com m ittin g the l e g i s
la tiv e , e x e cu tiv e , and ju d ic ia l fu n ction s to
sep a ra te d ep a rtm en ts , and in fo rb id d in g any
e n croa ch m en t b y one d ep artm en t on another in
e x e r c is e o f the au th ority so d e leg a ted .
6
The State o f M ich igan has a cted w ith in the
p ro v is io n s o f the fe d e r a l con stitu tion in prov id in g
that its le g is la tu r e sh a ll c o n tr o l s ch o o ls and school
d is t r ic t s , as is show n b y the fo llo w in g language:
In other w o r d s , the F ou rteen th A m endm ent of
the fe d e r a l C on stitu tion le a v e s the sta tes free
to d is tr ib u te the p ow ers o f g ov ern m en t as they
w il l b etw een the v a r io u s b ra n ch e s th e re o f .
Id. at 486 (footn ote om itted ). F u rth er s p e c if ic
su pport o f this p ro p o s it io n is g iven as fo llo w s :
M atters that have b een h e ld w ith in the
s co p e o f the le g is la t iv e p o w e r , as distinguished
fr o m the p ow ers o f the ju d ic ia l and execu tive
d ep a rtm en ts , a r e the a s ce rta in m e n t o f p e r t i
nent fa cts fo r le g is la t io n , the c r e a t io n and regu
la tion o f m u n icip a l c o r p o r a t io n s , the crea tion
and reg u la tion o f qu asi c o r p o ra t io n s fo r govern
m en ta l p u rp o s e s , the e sta b lish m en t and r e o r
gan ization o f s ch o o l d is t r i c t s , the fix in g and
changing o f b ou n d a ries o f su bord in a te g ov ern
m enta l units such as county b o u n d a r ie s , and
the au th oriz in g o f m u n icip a l a id to ra ilro a d s .
Id. S ec. 107 at 4 9 3 -9 4 (em p h asis supplied and
foo tn otes om itted ). It is a lso noted fr o m the same
s o u rce that "[t]h e gen era l ru le against ju d ic ia l
en croa ch m en t on the le g is la tu r e 's dom ain has also
been applied w ith r e s p e c t to . . . s ch o o ls and
sch oo l d is t r ic t s . . . . "Id. S ec. 151 (1) at 753-56 .
An exam ple o f the a p p lica tion o f this p rin c ip le ,
and a d em on stra tion that it is r e s p e c te d b y fed era l
cou rts re la t iv e to state le g is la tu r e s is p rov id ed
b y S parrow v . G ill , 304 F. Supp. 86 (M .D . N .C .
1969). That c a s e dea lt w ith a state statute w hich
7
p rov id ed , in ter a l ia , a d is t in c t io n b etw een c ity and
county pu pils in the a v a ila b ility o f s c h o o l bus t r a n s
p orta tion . The c o u r t poin ted out:
W e have h eld the c ity -c o u n ty d is t in ctio n a
con stitu tio n a lly v a lid one. W hether i t w ou ld b e
b e tte r and fa ir e r to a b o lish it and go to a
m e a s u r e d -d is t a n c e - f r o m -s c h o o l b a s is as u rg ed
b y p la in tiff is a p o lit ic a l q u estion fo r the p eop le
and th e ir le g is la t iv e r e p r e s e n ta t iv e s . It is not
fo r us to a n sw e r , and w e w ou ld e x c e e d our
ju r is d ic t io n w e r e w e to attem pt it.
Id. at 91. T hus, the o rd e r o f the D is t r ic t C ou rt in
the instant c a s e is an in tru s ion b y the ju d ic ia r y into
the la w -m a k in g p ro v in c e o f the le g is la tu r e , the p r o
h ib ition a ga in st w h ich is po in ted up in C . J . S . , su p ra ,
Sec. 144 at 6 9 1 -9 2 :
On the other hand, under the th e o ry o f the
se p a ra tion o f p ow ers the ju d ic ia r y d ep a rtm en t
m u st stay w ith in the bounds o f its con stitu tion a l
p o w e r , and cannot e x e r c is e th ose p o w e rs w h ich
a re to b e found in the oth er tw o dep artm en ts o f
g ov ern m en t, su ch as p o w e rs w h ich a re n o rm a lly
le g is la t iv e or p ow ers w h ich a re g e n e ra lly e x
ecu tiv e in th eir n a tu re , or p ow ers w h ich a re ,
b y s p e c i f ic con stitu tion a l p r o v is io n , c o n fe r r e d
on a d ep artm en t other than the ju d ic ia r y . As
d istin gu ish ed fr o m that p r im a r y fu n ction o f the
ju d ic ia r y to d e c la r e what the law i s , as noted
e a r lie r in this s e c t io n , it is not a p ro p e r ju d i
c ia l fu n ction to d e te rm in e w hat the law should
b e o r to m ake la w s . . . . (F ootn otes O m itte d .)
A s noted a b ov e , the M ich igan C on stitu tion has
s p e c if ic a lly c o n fe r r e d c o n tr o l o f s ch o o ls and s ch o o l
d is tr ic ts upon the le g is la tu r e .
8
B . THE ISSUE O F IN T E R -D IS T R IC T BUSSING
IS A N O N -JU ST IC IA B L E P O L IT IC A L QUESTION.
The su b je c t o f p o lit ic a l q u estion s is d iscu ssed
in C . J . S . , su p ra , S ec . 145. It is th ere poin ted out
that it is not n o rm a lly w ith in the p ro v in c e o f the
ju d ic ia r y to d e te rm in e p o lit ic a l q u estion s and that
the s co p e o f the te r m in clu d es th ose m a tters in r e
gard to w h ich fu ll au th ority has b e e n d e leg a ted to
the le g is la tu r e . Thus, the m a tter in q u estion falls
w ithin the co n c e p t o f p o lit ic a l q u estion , s in ce it is
w ith in the p ro v in c e o f the M ich igan le g is la tu r e .
This is su p p orted b y the fo llo w in g g e n e ra l summary:
[N ]or do m a tters p erta in in g to the c r e a t io n or
b ou n d a ries o f m u n ic ip a lit ie s , add ition o f land
th e re to , or the d etach m en t o f land th e re fro m ,
o rd in a r ily p re se n t q u estion s fo r ju d ic ia l d e
term in a tion . So, a ls o , w ith r e s p e c t to the
fo rm a tio n and d is so lu t io n o f s c h o o l d is t r ic t s ,
the s e le c t io n and lo ca t io n o f cou n ty se a ts , and
the m aking and c o r r e c t io n o f su rv e y s o f public
land.
Id . at 706 (footn otes om itted ).
A lthough th ere is o c c a s io n a l language found to
the e ffe c t that the p o lit ic a l q u estion is s u e applies
on ly to m a tters co n ce rn in g c o n f l ic ts am ong the
b ra n ch e s o f the fe d e r a l gov ern m en t, the con cep t
has b een app lied in n u m erou s c a s e s , su ch as the
instant c a s e , in w h ich a fe d e r a l c o u r t is c o n s id
erin g a m atter w ith in the p ro v in c e o f the state le g is
la tu re . It th e r e fo r e ap p ears c le a r ly esta b lish ed
that the p r in c ip le is a p p lica b le h e r e , b y analogy if
not d ir e c t ly .
9
In the c a s e o f D e tro it E d ison C o. v . E ast
China T ow n sh ip S ch o o l D is t r ic t N o. 3, 247 F . Supp.
296 (E . D . M ich . 1965), a f f 'd 3 78 F . 2d 225 (6th C ir .
1967), c e r t , d en ied 389 U .S . 932 (1967), property-
ow ners ch a llen g ed the annexation o f tw o s c h o o l d i s
tr icts to the s c h o o l d is t r ic t in w h ich th eir p ro p e r ty
was lo ca te d . The d is t r ic t co u r t h e ld that s c h o o l
d is tr ic t annexation p r o c e d u r e s a re p u re ly le g is la
tive m a tters w h ich a re not ju s t ic ia b le under the due
p ro c e s s or equ al p ro te c t io n c la u s e s o f the fe d e r a l
con stitu tion . The c o u r t d is c u s s e d the m a tter r e la
tive to c a s e s in v o lv in g a lte ra tio n o f m u n icip a l b ou n d
a ries and rea p p ortion m en t. The c o u r t n oted , c it in g
Hunter v . C ity o f P ittsb u rg h , 207 U .S . 161 (1907):
Any a lte ra tio n o f m u n icip a l b ou n d a ries is
a m a tter w ith in the co m p le te d is c r e t io n o f the
state and not con fin ed b y any r igh ts se cu r e d
by the fe d e r a l con stitu tion . 247 F . Supp. at 299.
This c o m p a r is o n is h igh ly a p p ro p r ia te , as
sch oo l d is t r ic t s in M ich igan have the sa m e le g a l
status as m u n icip a l c o r p o r a t io n s fo r m any p u rp o s e s .
M arathon S ch oo l D is t r ic t N o. 4 v . G age , 39 M ich .
484 (1878); Kent C ounty B o a rd o f E d u cation v . Kent
County T ax A llo ca t io n B o a rd , 350 M ich . 327, 86
N .W . 2d 277 (1957 ). D is cu ss in g rea p p ortion m en t
c a s e s , the c o u r t in D e tro it E d iso n , s u p ra , poin ted
out:
A state m ay not c r e a te e le c to r a l d is t r ic t s
w h ich have a popu lation d isp a r ity . But this
is the only lim ita tion the c a s e s p la ce upon the
le g is la t iv e p ow er o f a state to de fin e p o lit ica l
b o u n d a r ie s . They c r e a te no con stitu tion a l
righ ts in a ffe c te d c it iz e n s co n ce rn in g the p r o
ce d u re fo r cre a t in g or a lte r in g th ese d is tr ic ts
10
E ven w h ere the C ou rt has h e ld e le c to r a l d is
t r i c t b ou n d a ries m u st be a lte r e d , it has fa iled
to e s ta b lish a s p e c i f ic p r o c e d u r e to a ccom p lish
th is . R eyn old s v . S im s , 377 U .S . 533, 585,
84 S .C t . 1362, 12 L . E d. 2d 506 (1964). Further,
the c a s e s have nothing to do w ith l im ite d p u r
p o se d is t r ic t s , such as s c h o o l d is t r ic t s .
247 F . Supp. at 301. On the annexation is s u e , the
co u r t con c lu d ed :
The foundation on w h ich the H unter d o c
tr in e has stood fo r h a lf a cen tu ry on the issu e
o f annexation p r o c e d u r e is as stu rd y as ev er .
This c o u r t h o ld s , th e r e fo r e , that the s ch o o l
d is t r ic t annexation p r o c e d u r e o f the M ichigan
S ch oo l C ode w h ich w as fo llo w e d b y the original
E a st China d is t r ic t in fo rm in g the com b in ed
d is t r ic t , is a p u re ly le g is la t iv e m a tte r . It is
not ju s t ic ia b le under the due p r o c e s s or the
equal p r o te c t io n c la u s e s o f the F ou rteen th
A m en dm en t to the fe d e r a l con stitu tion .
Id . at 302. In a ffirm in g this d e c is io n , the co u r t of
appea ls stated :
H ow ev er , as the D is t r ic t C ou rt n oted , the r e
a p p ortion m en t c a s e s " c r e a t e no con stitu tion a l
righ ts in a ffe c te d c it iz e n s co n ce rn in g the p r o
ce d u re fo r cre a t in g or a lte r in g " any type o f
state d is t r ic t . The ju dgm en t o f the D is tr ic t
C ou rt w ith r e s p e c t to the annexation is su e w ill
h e re in a fte r b e a ffirm e d ; r e fe r e n c e is m ade to
the w e ll re a so n e d op in ion o f D is tr ic t Judge
T h eod ore L ev in re p o r te d at 247 F . Supp. 296.
378 F . 2d at 229.
11
Since the annexation o f s c h o o l d is t r ic t s and the
in te r -d is t r ic t b u ss in g o f students have e s s e n t ia lly
the sam e p r a c t ic a l e f fe c t , the h old in g and c a r e fu lly
reason ed op in ion o f the d is t r ic t c o u r t in that c a s e
is c le a r ly a p p lica b le to the m a tter in q u estion .
An exam in ation o f a s e r ie s o f rea p p ortion m en t
ca ses is qu ite in s tru c tiv e on the is s u e in v o lv ed h e r e .
The tra d ition a l v ie w w as d e s c r ib e d b y J u stice F ra n k
furter in h is op in ion fo r the C ou rt in C o le g r o v e v .
G reen , 328 U .S . 549 (1946):
W e a r e o f op in ion that the appellan ts ask
o f this C ou rt what is beyon d its co m p e te n c e to
grant. T h is is one o f th ose dem ands on ju d i
c ia l p ow er w h ich can n ot b e m et b y v e r b a l fe n c
ing about " ju r is d ic t io n ." It m u st b e r e s o lv e d
by co n s id e r a t io n s on the b a s is o f w h ich this
C ou rt, f r o m tim e to t im e , has re fu se d to in t e r
vene in c o n t r o v e r s ie s . It has re fu se d to do so
b e ca u se due re g a rd fo r the e ffe c t iv e w ork in g
o f our G overn m en t re v e a le d th is is s u e to b e o f
a p e cu lia r ly p o lit ic a l nature and th e r e fo r e n ot
m eet fo r ju d ic ia l d e term in a tion .
Id. at 552. T h is sta tem en t show s the r e s p e c t h e ld
by the S uprem e C ou rt fo r the im p o rta n ce o f d e c l in
ing to in te r fe r e w ith the w ork in g o f a state le g is la
ture and that rea son in g is equ a lly a p p lica b le h e r e .
Justice F ra n k fu rter w ent on to poin t out:
In e ffe c t this is an appea l to the fe d e r a l co u rts
to r e c o n s tr u c t the e le c to r a l p r o c e s s o f Illin o is
in o rd e r that it m ay be adequ ately re p re se n te d
in the c o u n c ils o f the N ation . B e ca u se the
Illin o is le g is la tu r e has fa iled to r e v is e its
C o n g re ss io n a l R ep resen ta tiv e d is t r ic t s in
12
o rd e r to r e f le c t g re a t ch a n g es , during m ore
than a g en era tion , in the d is tr ib u tion o f its
popu lation , w e a re asked to do th is , as it
w e r e , fo r I l l in o is .
O f c o u r s e no c o u r t can a ff ir m a t iv e ly remap
the I llin o is d is t r ic t s so as to b r in g th e m m ore
in c o n fo r m ity w ith the stan dards o f fa irn e ss
fo r a re p re se n ta t iv e s y s te m . At b e s t w e could
on ly d e c la r e the ex istin g e le c to r a l s y s te m in
v a lid .
Id. at 5 5 2 -5 3 .
On the point o f the a ction re q u ir e d , that case
w as id e n tica l to the p re se n t c a s e . The d is t r ic t
c o u r t h e re has a ttem pted to r e -m a p s c h o o l d is
t r ic t s , b y m eans o f n u llify in g b ou n d a ries b y in te r
d is t r ic t b u ss in g , and it shou ld not b e p erm itted
to do so b e ca u s e o f the p r in c ip le s d e s c r ib e d by
Ju stice F ra n k fu rter .
In G om illio n v . L ig h tfo o t , 364 U .S . 339 (1960),
the C ou rt did find an a p p rop r ia te c a s e fo r r e l ie f ,
d istin gu ish in g C o le g r o v e v . G re e n , su p ra , as fo l
low s :
The d e c is iv e fa cts in this c a s e , w h ich at this
stage m u st b e taken as p ro v e d , a re w h olly d if
fe re n t fr o m the co n s id e r a t io n s found controlling
in C o le g r o v e .
That c a s e in v o lv ed a com p la in t o f d is
c r im in a to r y a p p ortion m en t o f co n g r e s s io n a l
d is t r ic t s . The appellants in C o le g ro v e c o m
p la in ed on ly o f a d ilu tion o f the stren gth o f their
vo tes as a re s u lt o f le g is la t iv e in a ction over
1 3
a c o u r s e o f m any y e a r s . The p e t it io n e rs h e re
co m p la in that a ffirm a tiv e le g is la t iv e a ction d e
p r iv e s th em o f th eir v o te s and the con seq u en t
advantages that the b a llo t a f fo r d s .
Id at 346. That d is t in ctio n is d ir e c t ly a p p lica b le in
the instan t c a s e . In G o m illio n , the C ou rt s tru ck
down a r e -d r a ft in g o f b o u n d a r ie s . A ny r a c ia l im
ba lan ce w h ich e x is ts am ong M ich igan s c h o o l d i s
tr icts is the re s u lt o f p opu lation m ov em en t fo r
s o c io -e c o n o m ic o r p e rs o n a l re a so n s w ith in a s c h o o l
d is tr ic t b ou n d a ry s tru ctu re w h ich has b e e n in e x
is ten ce fo r m any y e a r s , ra th er than a r e s u lt o f any
a ffirm a tiv e r e -s tr u c tu r in g o f the b o u n d a r ie s .
A te s t fo r d e term in in g w hat is a n o n -ju s t ic ia b le
p o lit ica l q u estion w as sta ted in B ak er v . C a r r , 369
U .S . 186 (1962):
W e c o m e , f in a lly , to the u ltim ate in q u iry
w h eth er our p re ce d e n ts as to w hat con stitu tes
a n o n -ju s t ic ia b le "p o l it ic a l q u e s tio n " b r in g the
c a s e b e fo r e us under the u m b re lla o f that d o c
tr in e . A natura l beginn ing is to note w hether
any o f the co m m o n c h a r a c te r is t ic s w h ich w e
have b een ab le to id en tify and la b e l d e s c r ip
t iv e ly a re p re se n t . W e find n on e: The q u e s
tion h e r e is the c o n s is te n c y o f state a ction with
the F e d e ra l C on stitu tion . We h ave no q u estion
d e c id e d , or to b e d e c id e d , b y a p o lit ic a l b ra n ch
o f gov ern m en t c o -e q u a l w ith th is C ou rt. N or
do w e r is k e m b a r ra ssm e n t o f our govern m en t
a b roa d , or g ra v e d is tu rb a n ce at h om e i f w e
take is s u e w ith T e n n e sse e as to the co n s t itu
tion a lity o f h e r a ction h e r e ch a llen g ed . N or
need the a p p e llan ts , in o rd e r to s u cc e e d in
this a ct io n , ask the C ou rt to enter upon p o lic y
d eterm in a tion s fo r w h ich ju d ic ia lly m an ageab le
standards a re la ck in g .
1 4
Id . at 226 (em ph asis su p p lied ).
The instant c a s e fa lls w ith in the p o lit ic a l q u es
tion ca te g o r y as be in g the kind o f c a s e anticipated
b y the u n d erlin ed p ortion o f the a bov e quotation .
S in ce the c r e a t io n o f s c h o o l d is t r ic t b ou n d a ries is
not an a ct iv ity o f the ju d ic ia r y , th ere a re no ju d icia l
standards fo r so do in g . H ow ev er , this function is
c le a r ly w ith in the e x p e r t is e o f the le g is la tu r e , which
can draw not on ly upon k n ow led ge gained fr o m e x
p e r ie n c e in this a c t iv ity , but ca n a ls o r e ly upon
k n ow ledge gained fr o m studying the n eeds and d e
s ir e s o f the c it iz e n s o f the sta te .
A nother fa c to r in d e term in in g w h eth er this is
a p o lit ic a l q u estion is pointed out in R eyn old s v .
S im s , 377 U .S . 533 (1964). In that c a s e , in d e te r
m ining that a p o lit ic a l q u estion w as not in v o lv ed ,
the C ou rt o b se rv e d :
No e ffe c t iv e p o lit ic a l re m e d y to obtain
r e l ie f aga in st the a lle g e d m a la p p ortion m en t of
the A labam a L e g is la tu re a p p ea rs to have been
a v a ila b le .
Id. at 553.
In that c a s e , then, the C ou rt fe lt c o m p e lle d
to g ive r e l ie f , s in ce no other re m e d y w as a v a il
ab le . In the instant c a s e , i f the p eop le o f M ichigan
b e lie v e that s c h o o l d is t r ic t b ou n d a ries should be
a lte re d , they have the opportu n ity to co n v e y this
b e l ie f to th eir e le c te d re p r e s e n ta t iv e s , and the
le g is la tu r e can m ake any a p p rop r ia te a lte ra tion s .
As d is cu s s e d a b ov e , and as noted in S ch oo l D istrict
o f C ity o f L ansing v . State B oa rd o f E du cation , supra,
the state le g is la tu re has the p ow er to o rg a n ize and
15
con tro l s c h o o l d is t r ic t s in the sta te , in clu d in g th e
pow er to p ro v id e fo r the a lte ra tion o f b ou n d a ries o f
sch oo l d is t r i c t s . T hus, it is e n t ire ly a p p ro p r ia te
that this kind o f a ction b e taken b y the le g is la tu r e ,
not b y the co u r t .
The d ifficu lty and d e l ic a c y o f p rov id in g a ju
d ic ia l re m e d y in this type o f s itu ation w as a stu te ly
noted b y the d is t r ic t c o u r t in S trick lan d v . B u rn s ,
256 F . Supp. 824 (M .D . Tenn. 1966). In that c a s e
a statute p rov id in g fo r a p p ortion m en t fo r votin g
for m e m b e rs o f s c h o o l b o a rd s w as ch a lle n g e d . The
cou rt h e ld :
W e h o ld , th e r e fo r e , that the d is c r im in a tio n
ex istin g is in v id iou s . S in ce w e ca n find no
b a s is fo r applying the "on e m an , one v o te "
ru le to the c o n g e r ie s o f p o w e rs p o s s e s s e d by
the L e g is la tu re i t s e l f and at the sam e tim e
denying its a p p lica tion to a su bord in a te b od y
s im p ly b e ca u s e it p o s s e s s e s a fr a c t io n a l p art
o f th ose p o w e rs , so lon g at le a s t as the f r a c
tion a l p a rt cannot b e sa id to b e in s ig n ifica n t or
u n im portan t, w e m u st a ls o h o ld that the a p
p ortion m en t p ro v is io n s o f the A ct com p la in ed
o f a re v o id as v io la t iv e o f righ ts s e cu r e d b y the
E qual P ro te c t io n C la u se o f the F ou rteen th
A m endm ent.
The p r o v is io n o f p ro p e r r e l ie f to im p lem en t
this d e c is io n has g iven this c o u r t m uch c o n c e r n .
W e b e lie v e that the fo rm u la tion o f a co n s t itu
tion a lly a cce p ta b le m eth od o f s e le c t in g a b oa rd
to a d m in is te r the s ch o o ls o f the cou n ty is m o re
p r o p e r ly a le g is la t iv e fun ction than a ju d ic ia l
one.
16
Id. at 827. As a re s u lt o f its d e term in a tion that
this w as a le g is la t iv e fu n ction , the c o u r t d eclin ed
to g ive the req u ested in ju n ctiv e r e l ie f .
T h ese au th orities show v e r y c le a r ly , then, that
a p ro g r a m o f in t e r -d is t r ic t b u ss in g o f s c h o o l c h i l
d ren is not a p p ro p r ia te ly c r e a te d by the ju d ic ia ry ,
but ra th er such a ction s a re the e x c lu s iv e p rov in ce
o f the le g is la tu r e .
T his w as the d e c is io n in the fa ctu a lly s im ila r
c a s e o f B ra d ley v . S ch oo l B oa rd o f the C ity o f R ich
m on d , 462 F . 2d 1058 (4th C ir . 1972), a f f 'd , 412
U .S . 92 (1973), w h ich the Sixth C ir c u it C ou rt of
A ppeals attem pted to d istin g u ish :
W e th e r e fo r e con c lu d e that the D is tr ic t
C ou rt in the p re se n t c a s e is not con fin ed to
the bou n dary lin es o f D e tro it in fash ion ing
equ itab le r e l ie f .
B ra d le y v . S ch oo l B oa rd o f the C ity o f
R ich m on d is d in tin gu ish ab le in s e v e r a l re sp e c ts .
In that c a s e the D is tr ic t C ou rt o rd e r e d an actual
co n so lid a tio n o f th ree sep a ra te s c h o o l d is tr ic ts
a ll o f w h ich the C ou rt o f A ppea ls fo r the Fourth
C irc u it d e c la r e d to be u n itary in the instant case
the D is tr ic t C ou rt has not o rd e r e d c o n s o lid a
tion o f s c h o o l d is t r ic t s but d ire c te d a study of
plans fo r the re a ss ig n m e n t o f pupils in sch oo l
d is t r ic t s c o m p r is in g the m e tro p o lita n a rea of
D etro it . In the R ich m on d c a s e the co u r t found
that n eith er the C on stitu tion n or statutes of
V irg in ia , p r e v io u s ly or p re se n tly in e ffe c t ,
w ould have p erm itted the State B oa rd o f E duca
tion , actin g a lon e , to have e ffe c te d a co n so lid a
tion o f the th ree s ch o o l d is t r ic t s into a single
sy stem under the co n tro l o f a s ingle
1 7
s c h o o l b o a r d . The F ourth C ir c u it h e ld that
c o m p u ls o r y co n so lid a t io n o f p o lit ic a l su b d iv i
s ion s o f the State o f V irg in ia w as b eyon d the
p ow er o f a fe d e r a l c o u r t b e ca u se o f the Tenth
A m en dm en t to the C on stitu tion o f the United
S tates. The d e c is io n s w h ich now a re under
re v ie w did not con tem p la te such a re s tr u ctu r in g .
484 F . 2d at 2 5 0 -5 1 . W e re s p e c t fu lly con ten d that
the R ich m on d c a s e is not thus d is tin g u ish a b le . In
R ichm ond the co u r t had o rd e r e d a co n so lid a t io n o f * II.
s ch o o l d is t r ic t s . In M illik e n , in t e r -d is t r ic t b u ss in g
has b een o r d e r e d . The la b e ls a re thus d iffe re n t,
but the e f fe c t is the sa m e . A d m in is tra t iv e ly , th ere
m ay b e a d if fe r e n c e , but in te rm s o f a ttendance p a t
terns the re s u lt is the sa m e , and attendance p a t
terns a re the r e a l is s u e in a d e s e g re g a t io n plan.
It w as poin ted out that in the R ich m on d c a s e ,
the State B oa rd o f E d u cation w as w ithout au th ority
to o rd e r the co n so lid a t io n . This m akes the instant
ca se even s tro n g e r fo r r e je c t io n o f the p lan , fo r
h ere th ere is an a ltern a tiv e re m e d y . A s d is cu s s e d
su pra , the M ich igan le g is la tu r e is fu lly em p ow ered
to take any a ction that is re q u ire d .
II.
THE O RD E R O F THE D ISTR IC T C O U R T IS IN A P
P R O P R IA T E IN TH A T IT IS D IR E C TE D A T P A R
TIES WHO A R E W ITH OUT THE A U T H O R IT Y TO
C O M P L Y W ITH THE O R D E R .
A s c le a r ly e s ta b lish ed in p re v io u s d is c u s s e d ,
the M ich igan le g is la tu r e is s o le ly r e s p o n s ib le fo r
the c o n tr o l o f s ch o o ls and s ch o o l d is t r ic t s . None
of the defendants in this m a tter have the au th ority
to im p lem en t a plan o f in t e r -d is t r ic t b u ss in g as
1 8
su ggested b y the o r d e r o f the d is t r ic t c o u r t . This
p r in c ip le w as c le a r ly e s ta b lish e d in B ra d le y v .
S ch oo l B oa rd o f C ity o f R ich m on d , su p ra , and this
co n c lu s io n is lo g ic a l ly in e sca p a b le .
in.
A B SE N T A SHOWING O F DE JURE SE G R E G A T IO N -.
E RR O N EO U SLY FOUND B Y THE SIXTH C IRCU IT
CO U RT O F A P P E A L S --T H IS C O U R T W IL L NOT
R E -B A L A N C E THE RIGH TS O F P A R T IE S TO
ACH IE V E E IT H E R A Q U A N T IT A T IV E OR A Q U A LI
T A T IV E E Q U A L IT Y .
The United States S uprem e C ou rt has c o n s is t
ently h eld that c la s s if ic a t io n s o f p eop le w ill not be
stru ck dow n as o ffe n s iv e to the con stitu tion m e r e ly
b e ca u se such d is tin ction s am ong them a re "n o t m ade
w ith m a th em atica l n ice ty or b e ca u se in p r a c t ic e it
re su lts in som e in equ ity . " D an dridge v . W illia m s.
397 U .S . 471 , 484 (1970). The S uprem e C ou rt has
re fu se d to ru le on the fa irn e ss o f a p a r ty 's c ir c u m
sta n ces and in stead e x e r c is e s its p ow er on ly when
le g is la t io n is u n rea son a b le or im p in ges on a funda
m ental r igh t or c r e a te s a c la s s w h ich is inh eren tly
su sp e ct . Substantive con stitu tion a l righ ts m ay not
be m ade by the Court: "It is not the p ro v in ce o f this
C ou rt to c r e a te substantive con stitu tion a l righ ts in
the nam e o f guaranteeing equal p ro te c t io n o f the
la w s ." San A ntonio S ch oo l D is t r ic t v . R od r ig u ez ,
411 U .S . 1, 33 (1972)
S im ila r co n s id e ra t io n s a re in e ffe c t w hen the
issu e o f im p e r m is s ib le state a ction is litig a ted .
Quite c le a r ly the State m ay not o v e r t ly d iscr im in a te
again st a ce r ta in r a c e w hether in edu cation , Brown
v . B oard o f E d u ca tion . 347 U .S . 483 (1954); or in
19
hou sin g , H unter v . E r ic k s o n , 393 U. S. 385 (1969).
The C ou rt has n ot, h o w e v e r , h e ld that m e r e de fa cto
se g re g a tio n , even w hen im p orta n t righ ts a re in
v o lv ed , is enough to w a rra n t the h old in g o f an equal
p ro te c t io n v io la t io n . In c a s e s w ith fa cts m o s t s im i
la r to the c a s e at b a r , the on ly d is c r im in a t io n found
was un intentional and thus n o n -r e m e d ia b le b y this
C ourt.
A se co n d c o n s id e r a t io n , even b eyon d the la ck
of obv iou s state a ction , w ou ld lead this C ou rt to
ru le a ga in st the Sixth C ir c u it d e c is io n . R ecen t
ca s e s dea lin g w ith h ou sin g and p ro p e r ty taxes and
their re a c t io n upon r a c ia l upw ard m o b ility have
co n s is te n tly a n a lyzed the req u e ste d r e l i e f aga in st
the righ ts that w ou ld b e im p in ged by a finding o f an
equal p ro te c t io n v io la tio n . The S u prem e C ou rt has
re c o g n iz e d that ce r ta in " r ig h ts " so in h eren t in the
p eop le e ffe c te d b y any ru lin g , outw eigh the s o c ia l
planning a sp e cts o f c o u r t d e c is io n s . Thus a r igh t
to v o te , w hen e x p r e s s e d in a h ou sin g re fe re n d u m ,
lead to a b lo ck in g o f low in co m e p eop le into a c e r
tain c ity . A ls o the r igh t to tax o n e 's s e l f fo r quality
lo ca l s c h o o ls , even though oth ers le s s e c o n o m ic a lly
w e ll o f f w ill b e o b v io u s ly p r e ju d ic ia l , has b een u p
h eld . The one con stan t in th ese c a s e s is that as
long as a c c e s s is open to a ll no lo c a lity m ay be
p re ju d ic ia l fo r its own abundance. T h u s, in a de
fa cto r a c ia l se g re g a tio n c a s e , such as the one at
b a r , not on ly m u st the la ck o f a ffirm a tiv e state
action c a l l fo r a r e v e r s a l but a ls o the fa c t that the
p eop le tru ly at in te re s t , th ose w ho liv e n ear the
sch oo ls th eir ch ild re n attend, a re e x e r c is in g a
right fa v o ra b ly v iew ed b y this C ou rt in a n u m ber o f
con tex ts . O ften they m ay m ove s p e c i f ic a l ly to an
area to have th eir ch ild re n attend ce r ta in s c h o o ls .
They tax th e m se lv e s to m aintain and im p ro v e th eir
20
s c h o o ls . F in a lly they have p a rtic ip a tio n in an in
stitution w h ich d e s p e ra te ly n eed s such attention .
As unequal as the ed u ca tion a l fa c to r m ay be am ong
the r a c e s in the D e tro it M etrop o lita n A re a th ese
p eop le should not b e to ta lly d e p r iv e d o f the s ch o o l
d is tr ic ts they have in itia ted and b u ilt in o rd e r to
righ t an obv iou s s o c ia l w ro n g . A h old in g to a ffirm
the Sixth C ir c u it w ould p la ce this C ou rt in the realm
o f s o c ia l planning and, m o r e im p orta n tly , d iv e s t
o th ers o f r igh ts as im p orta n t as any in our nation .
E ven a c u r s o r y rea d in g o f c a s e s on the su b ject
c o n c lu s iv e ly show s how e rro n e o u s w as the hold ing
o f the Sixth C irc u it that the State has co m m itte d
de ju r e a cts o f se g re g a tio n b y fa ilin g to a ffirm a tive ly
r e -a l ig n the r a c ia l p e r c e n ta g e s in D e tro it a rea
s c h o o ls . B ra d le y v . M illik en , 484 F . 2d 215, 249
(6th C ir . 1973). The b a s ic find ings to show state
a ction w e r e that s c h o o l d is t r ic t lin es w e re draw n
to ex clu d e b la c k s , h ou sin g c ir c u m s ta n c e s a re such
that b la ck s u su a lly m ay liv e on ly n ear ce r ta in
s ch o o ls and that s ch o o l c o n s tr u ct io n has b een only
to perp etu ate this d is c r im in a t io n . Y et, as W eick s ,
J. c o r r e c t ly show s in h is d isse n t, no finding o f de
ju re d is cr im in a tio n has e v e r b e e n h eld on th ese
fa c ts . This is e s p e c ia lly so w hen the m agnitude
o f the plan is im a g in ed . A p p ro x im a te ly th ree coun
ties and o v er fifty s ch o o l d is t r ic t s w ill b e e ffe cted
b y any cu ra tiv e o rd e r .
The p resen t B ra d le y d e c is io n co n f lic ts w ith a
g rea t num ber o f other s ch o o l d e se g re g a tio n ca s e s .
In th ese c a s e s on fa cts c lo s e ly p a ra lle l to the instant
ca s e only de fa cto d is cr im in a tio n w as show n with
no a ffirm a tiv e o rd e r fo r th co m in g fr o m the co u r ts .
[C o n tra ry to ce r ta in op in ions the de fa c t o /d e ju re
d istin ction reg a rd in g s ch o o l d e se g re g a tio n c a s e s
21
is s t i l l v e r y m uch v ia b le as a co n c e p t . See K eyes
v. S ch oo l P i s t r ic t N o. 1, D en v er , C o l o . , 413 U .S .
189, 2 0 8 -1 4 (1 9 7 2 ).] Q uite co n fu s in g ly the sam e
qu estion s in an id e n tica l co n ce p tu a l fra m e w o rk w e re
o ffe red to the Sixth C ir c u it in D ea l v . C in cin n ati
B oard o f E d u ca tion , 419 F . 2d 1387 (6th C ir . 1969),
ce r t , d en ied , 402 U .S . 962 (1971); D ea l v . C in
cinnati B o a rd o f E d u cation , 369 F . 2d 55 (6th C ir .
1966), c e r t , d e n ie d , 389 U .S . 847 (1967). A lthough
in D ea l II the d is t r ic t c o u r t had n ot found de ju re
seg reg a tion on the p a rt o f the s c h o o l d is t r ic t the
cou rt o f a ppea ls had the r ig h t to v ie w the r e a s o n a b le
ness o f th e ir d e te rm in a tion . The c o u r t con c lu d e d ,
h ow ev er, that the d is tr ic t in g had to do w ith s o c ia l
ca u ses b ey on d the c o n t r o l o f the b o a rd s in ch a rg e :
"B o a rd s o f E du cation can h a rd ly b e b la m e d or h e ld
re s p o n s ib le fo r n e ig h b orh ood re s id e n tia l p a t te r n s ."
D eal v . C in cin n ati B oa rd o f E d u ca tion , su p ra , 419
F. 2d at 1392.
The m o s t ir r e c o n c i la b le d iffe r e n c e w ith B r a d
ley c o m e s in c o m p a r is o n w ith the r e c e n t d e c is io n
o f S p en cer v . K u g le r , 326 F . Supp. 1235 (D. N .J .
1971), a f f 'd , 404 U .S . 1027, w ith D ouglas d is s e n t
ing (1972). U nder sta tu tory law qu ite s im ila r to
M ich iga n 's New J e r s e y had a u n itary s y s te m o f e d
u cation . Thus none o f the fa ls e d is c r im in a t io n
patterns o f c a s e s like Swann v . C h a r lo tte -
M eck len bu rg B oa rd o f E d u cation , 402 U .S . 1 (1971),
w ere re le v a n t. In S p en cer p la in tiffs w e r e b la ck s
who c la im e d that a ll p u b lic s ch o o ls in N ew J e r s e y
w ere r a c ia l ly u n balan ced . The re q u e s t fo r r e l ie f
was p r e m is e d on a v io la t io n o f equal p ro te c t io n .
The C ou rt, qu ite lo g ic a l ly , found that any s e g r e
gation co u ld on ly b e d efin ed as de fa c to :
2 2
In none of the sch oo ls o f w hich the plaintiffs
com pla in is any b lack pupil "se g re g a te d " from
any white pupil. Indeed, com plaint is made
that the b lacks who res id e in the sch oo l d is
tr ic t served predom inate over the w hites, thus
affording an exam ple o f com plete desegregation
w hich was the exp ressed ob ject o f the cou rt in
the Brown ca se . At page 487 o f the Opinion at
page 688 of 74 S. Ct. in Brow n it is stated that:
"In each o f the ca se s [fro m K ansas, South
C arolina, V irgin ia and D elaw are] m inors
of the N egro ra ce , through their legal
rep resen tatives , seek the aid of the courts
in obtaining adm ission to the public schools
o f their com m unity on a nonsegregated
b a s is . In each instance, they had been
denied adm ission to sch oo ls attended by
white ch ildren under laws requ iring or
perm itting segregation a ccord in g to r a c e ."
Such is not the basis upon w hich each o f the
plaintiffs in the present ca se seeks r e l ie f in
this cau se. On the con tra ry plaintiffs would
have a substantial portion o f the pupils now in
attendance in their resp ective sch ools ordered
by the cou rt rem oved from these sch ools and
assigned to a sch oo l in another d is tr ic t . A l
ternatively plaintiffs would have the cou rt abol
ish the resp ective d istr icts in which the d is
proportion betw een white and black students is
reduced in one d irection or the other. If, as
plaintiffs contend, the proportionate b lack at
tendance in their resp ectiv e sch ools adversely
a ffects the d egree of exce llen ce of education
which they can re ce iv e there m ust be a point
at which any excess of b lacks over whites is
23
lik e ly to im pair the quality of the education
available in that sch oo l fo r the b lack pupils.
N ow here in the Appendix filed by the plaintiffs
or in the facts involved in any o f the ju d ic ia l
precedents w hich they c ite are w e in form ed of
the sp e c ific ra c ia l p roportion s w hich are lik e ly
to assu re m axim um exce llen ce o f the educa
tional advantages available for the w hites.
Assum ing further that e fforts to ach ieve the
idea l in te rra c ia l p roportion n e ce s sa r ily in
clude the alteration o f the population factor
determ inative o f the red istr ic tin g , there can
be no assu ran ce that the population fa ctor w ill
rem ain static. If so , it w ould be n e ce ssa ry to
su cce s s iv e ly rea ssig n pupils to another d istr ic t
as the rate of b irths and graduations a lters the
ra c ia l proportions creating the demand for the
educational fa c ilitie s as it changes fro m term
to term . In sum , the d ifficu lty com plained o f
does not amount to unconstitutional segregation .
326 F. Supp. at 1239-40. This is cited in W eick 's
dissent, B rad ley , su pra , 484 F. 2d at 261 -62 . The
court in Spencer further noted that so c ia l d is lo c a
tion , even when it resu lted in ra c ia l im balance in
public sch o o ls , was not a ground for a ruling of a
constitutional v iola tion :
A continuing trend toward ra c ia l im balance
caused by housing patterns within the variou s
sch oo l d istr icts is not su sceptib le to federa l
ju d ic ia l intervention. The New J ersey L e g is
lature has by intent m aintained a unitary system
of public education, a lbeit that system has d e
generated to extrem e ra c ia l im balance in som e
sch oo l d is tr ic ts ; n everth eless the statutes in
question as they are presently constituted are
constitutional.
Id. at 1243.
24
The m a jority in B rad ley was apparently co n
fused by the th eoretica l d ifferen ces in ca ses like
Swann v . C h arlotte-M eck lenbu rg B oard o f Educa
tion, supra , and W right v . C ouncil o f the City of
E m poria , 407 U .S . 451 (1972). In Swann, supra,
an h is to r ica l structure of m andatory separation
of the ra ces into dual educational system s was being
co r re c te d . The Suprem e C ourt noted that it was
this c o r re c t io n which gave the ju d ic ia ry im petus
to intervene:
Absent a constitutional v io la tion there would
be no b asis fo r ju d ic ia lly orderin g assignm ent
of students on a ra c ia l b a s is . A ll things being
equal, with no h is tory of d iscr im in a tion , it
m ight w ell be d esira b le to assign pupils to
sch ools n earest their h om es. But a ll things
are not equal in a system that has been d e lib
erate ly constructed and m aintained to en force
ra c ia l segregation . . . . The ob jective is to
dism antle the dual sch oo l system .
Id. at 28 (em phasis supplied). S im ilar co n s id e ra
tions w ere evident in W right, supra, when the
Supreme Court struck down the C ity 's attem pt to
crea te a separate sch oo l system . The new system
would have served to im pede the dism antling o f
the dual structure:
The c ity 's creation of a separate sch oo l system
was enjoined because o f the e ffe ct it w ould have
had at the tim e upon the e ffectiven ess o f the
rem edy ordered to d ism antle the dual system
that had long existed in the area .
Id. at 470.
25
Quite c le a r ly the d iscrim in ation evident in the
Detroit area is a resu lt o f com p lex and la rge ly
m ysterious so c ia l fo r c e s . Any finding o f de ju re
state action based upon so c ia l change is c le a r ly
erroneous. The B rad ley v . M illiken , supra, cou rt
should have m ade a finding that only de facto s e g r e
gation existed .
Based upon findings o f de facto segregation or
of an unequal burden p laced on a c la ss by le g is la
tion the Suprem e C ourt has analyzed the im portance
of rights involved . Even when dealing with subjects
having im portant so c ia l w eight, h ow ever, the Suprem e
Court has upheld certa in rights or expectations in
herent in the con cep t o f a fre e people. The present
case presents no situation to change this th eoretica l
consistency.
A negative exam ple m ay se rv e to c le a r ly d e
lineate the is su e . In the ca se s o f Hunter v . E r ic k
son, supra, and Reitm an v . M ulkey, 387 U. S. 369
(1967), the Suprem e C ourt went through an obvious
balancing act betw een the right t.o vote and the right
to rem ain fre e fro m d iscrim in ation . In Hunter the
Court invalidated an am endm ent to the Akron Fair
HousingOrdinance becau se it m ade a ll attem pts to
regulate against ra c ia l d iscrim in ation in housing
subject to voter approval. The burden cou ld fa ll
only on m in orities . Other housing ordinances (not
dealing with ra ce ) took e ffe ct without any sp ecia l
legislation . In Reitm an the right to ra c ia lly d is
crim inate in the sale o f rea l estate would have b e
com e part o f the State o f C a liforn ia 's constitution .
As such it would have been im m une fro m regulation .
The balancing of rights becam e much le ss o f a p ro b
lem when the Court was faced with such a pern icious
outcom e. These ca ses have been , h ow ever, the e x
ception.
2 6
The Suprem e Court has been ca re fu l to protect
what m ay be term ed the rights of s o c ia l expectancy,
B a sica lly such rights are entwined with the ethic
that an individual is free to pursue his l i fe 's calling
w here and when he ch o o se s . V ery often this ethic
jo ins with a second body of theory , the m a jo r i-
tarian ethic. Thus a re la tive ly w ealthy individual
m ay seek others s im ila r ly situated econ om ica lly
in order to fo rm a com m unity. Schools and other
am enities o f life m ay be structured and developed
by them. Such people are a lso the voting m ajority
of the m unicipality. At tim es what this majoritarian-
individual rights ethic crea tes w ill inconvenience
others by the fact that these others do not en joy the
sam e advantages crea ted by the m a jority . When such
ca ses have com e b e fo re this C ourt the conclusions
delivered have a lm ost unanim ously con cu rred in the
actions of the con tro llin g m ajority .
The problem s facing the Court regarding con
flicts in the above areas have, o f co u rse , been more
com plex than the abstract m odel. In creasing ly those
disadvantaged, even without any overt state action,
are the m em bers of a single ra c ia l c la s s . Thus
every c la im of an econom ic or so c ia l denial b e
co m e s , at its c o r e , a charge of ra c ia l d iscr im in a
tion. The Suprem e Court has not, h ow ever, seen
fit to lessen its grasp of what is tru ly at stake in
such situations. The right to attend a certa in school
or a certa in sch oo l d is tr ic t , as w ell as to live in a
certa in c ity , ca r r ie s with it a p r ice tag. Such a
co s t a ffects both parties at in terest.
The firs t co s t re fe rs to the constant open lad
der of so c ia l m obility which m ust be kept open.
Thus the con trollin g ethic m ay not absolutely block
any r ise up the ladder by a m em ber of an undesired
ra ce .
27
The second co s t , how ever, is the true crux of
the m yriad of ca ses w hich have com e b e fo re the
Supreme Court on an equal p rotection theory. The
m ajoritarian con tro l group has the inherent right
to determ ine their own individual and co lle c tiv e
destin ies. Those so c ia lly le s s fortunate m ay m ove
into this con tro l group but only as they individually
rise. The Court has re fu sed to b ecom e a tool for
socia l change. To do so would strongly burden
those who do m ore to an area sp e c ifica lly for the
benefit o f its sch o o ls , hom es or jo b s . The benefit
to so c ia lly deprived groups would not be equal to
the strain of d isloca tion form ed i f equality in fact
becam e the norm by which the Suprem e C ourt would
have to judge each ca se . A quick rev iew of recen t
cases w ill am ply dem onstrate this balancing test
presently used by the Suprem e Court.
The point has continually been m ade that h ou s
ing is a prim e com ponent in the elevation of d is
advantaged ra ce s . Often better living cond itions,
better sch oo ls and jobs fo llow the con stru ction of
new (usually suburban) housing. It would th ere fore
s e e m -- i f the equality ethic w ere dom inant--that
the ju d ic ia ry would con sisten tly defeat any attempts
to rem ove these affluent areas from con tro l by the
m ajoritarian ethic. Such is not, h ow ever, the ca se .
In James v . V a ltie rra , 402 U .S . 137 (1970), the
Supreme Court upheld C a liforn ia 's A rtic le XXXIV
which made a referendum n e ce ssa ry for a ll low -
rent public housing p ro je c ts . Quite c le a r ly m in o r i
ties would have their ability to enter these p laces
of a better existence curta iled by the right of the
people to vote against public housing. Justice
Black, who d issented in R eitm an, supra, w rote the
m ajority opinion which held that "p rov is ion s for
referendum s dem onstrate devotion to d em ocra cy ,
2 8
not to b ia s , d iscrim in ation or p r e ju d ic e ." James
v . V a ltierra , supra , 402 U .S . at 141. M ost im
portantly, h ow ever, was the con tro l over their own
lives the m a jority opinion understood as the central
reason to uphold the referendum :
This p roced u re ensures that a ll the people of
a com m unity w ill have a v o ice in a d ecis ion
w hich m ay lead to large expenditures of loca l
governm ental funds for in crea sed public s e rv
ice s and to low er tax revenu es. It gives them
a v o ice in d ecis ion s that w ill e ffe c t the future
developm ent of their own com m unity .
Id . at 143 (em phasis supplied). The cap was put
upon this theory when in L indsey v . N orm et, 405
U .S . 56 (1972), upon the com plaint o f tenants that
they w ere in danger o f being evicted under an un
constitutional statute, the Suprem e Court noted
that housing was not a constitutional right. Id . at
74. Thus, neither the right to equal housing nor
the right to adequate housing per se is guaranteed
by the constitution.
Follow ing such a conceptual tra il was the d e
c is ion of San Antonio School D istr ict v . R odrigu ez,
supra. In R odriguez the Court upheld the right of
loca l sch oo l d istr icts to be funded in the traditional
m anner of lo ca l p roperty taxes. The im portance
of this d ecis ion cannot be overstated becau se it
d irectly con tro ls the considerations which should
be used in deciding the instant ca se .
The R odriguez Court o ffered a very broad
opinion with two main points each of which further
a ffirm s the theory posited above. The firs t point
is that w here a deprivation is based upon wealth
no rem edy w ill be available unless a com plete
deprivation is evident:
29
The individuals, or groups of individuals, who
constituted the c la ss d iscrim in ated against in
our p r io r ca ses shared two distinguishing c h a r
a c te r is t ic s : becau se of their im pecunity they
w ere com p lete ly unable to pay for som e d esired
benefit, and as a consequence, they sustained
an absolute deprivation of a m eaningful op p or
tunity to en joy that benefit.
Id. at 20. Thus i f no de ju re segregation is found
no c la im m ay be m ade that those a lleged ly d is c r im
inated against w ere without any adequate sch oo ls .
The second point was one echoed in Jam es,
supra, and W right, su p ra : the participation in one 's
own lo ca l a ffa irs :
The Texas system of sch oo l finance is
resp on sive to these two fo r c e s . W hile a s su r
ing a b a s ic education for every ch ild in the
State, it perm its and encourages a large m e a s
ure o f participation in and con tro l o f each d is
t r ic t 's sch ools at the lo ca l leve l. In an era
that has w itnessed a consisten t trend toward
cen tra lization of the functions o f governm ent,
lo ca l sharing of resp on sib ility for public educa
tion has survived. The m erit o f lo ca l con tro l
was recogn ized last T erm in both the m ajority
and dissenting opinions in W right v . Council
of the City of E m p oria , 407 U .S . 451 (1972).
M R. JUSTICE STEW ART stated there that
" [d jir e c t con tro l over d ecision s v ita lly a ffe c t
ing the education o f on e 's ch ildren is a need
that is strongly fe lt in our socie ty . " Id. , at
469. THE CHIEF JUSTICE, in his diTient,
agreed that " [ l jo ca l con tro l is not only vital
to continued public support of the sch oo ls , but
30
it is o f overrid ing im portance fro m an educa
tional standpoint as w e ll. " _Id. , at 478.
The p ersisten ce o f attachm ent to governm ent
at the low est leve l w here education is concerned
re fle cts the depth o f com m itm ent of its sup
p o rte rs . In part, lo ca l con tro l m eans, as
P ro fe ss o r Colem an suggests, the freed om to
devote m ore m oney to the education o f one's
ch ildren . Equally im portant, h ow ever, is the
opportunity it o ffers for participation in the
d ecision -m ak in g p ro ce s s that determ ines how
those lo ca l tax d o lla rs w ill be spent. Each
loca lity is free to ta ilor lo ca l p rogram s to
lo ca l needs. P lu ra lism a lso a ffords som e op
portunity for experim entation , innovation, and
a healthy com petition fo r educational e x c e l
len ce . An analogy to the N ation-State r e la
tionship in our fed era l system seem s uniquely
appropriate. M r. Justice B randeis identified
as one o f the pecu liar strengths of our fo rm of
governm ent each State's freed om to "s e r v e as
a laboratory ; and try novel so c ia l and economic
experim ents. " No area of so c ia l con cern stands
to profit m ore from a m ultip licity of viewpoints
and from a d ivers ity of approaches than does
public education.
R od rigu ez , supra , 411 U .S . at 49 -50 . Thus a
d istinct prem ium is p laced upon the right of the
m a jority to con tro l the pace and d irection o f their
own liv es . Minus an obvious d iscrim in ation against
a ra c ia l group, courts w ill not seek to balance
"natural" so c ia l inequalities.
These sam e considerations have echoed
throughout past sch ool d esegregation c a s e s . No
one has been held to have the right to an educational
31
experience o ffered to another fam ily that exists
in another town. Whether a group is d iscrim in ated
against due to their p overty even when associa ted
with ra ce as long as no overt (de ju re ) d is cr im in a
tion is the cause of a lack of so c ia l am en ities, no
constitutional cause of action w ill be found. The
rule put forth in Deal I, su pra , is s till good law:
We hold that there is no constitutional duty on
the part o f the B oard to bus N egro or white
ch ildren out of their neighborhoods or to tran s
fer c la s se s for the sole purpose of alleviating
ra c ia l im balance that it did not cau se , nor is
there a like duty to se le ct new sch oo l sites
so le ly in furtherance of such a purpose.
Id. at 6 l . To hold otherw ise in the instant case
would be to se r iou s ly in fringe upon the right of
people to a ffirm ative ly structure their own liv es .
A leg is la tive answ er is quite obviously needed for
this p rob lem . To rem ove the right o f people to live
near the sch ools to w hich they w ish to send their
children, and w hich m ay have been the reason for
their m ove there in itia lly , would be to sev ere ly
retard involvem ent in lo ca l a ffa irs , and m ore im
portantly it would re s tr ic t m ajoritarian con tro l.
C learly past d ecis ion s have not sought such a so lu
tion to com plex so c ia l p rob lem s.
32
CONCLUSION
A d esegregation order that in e ffe ct reorg a n
izes lo ca l units of governm ent is v io la tive o f the
bas ic constitutional p rin cip le o f fe d era lism . The
fa ilure o f the order to re cogn ize the reservation
o f pow ers to state governm ent not only undermines
such governm ent abstractly but negatives lo ca l
d em ocra cy and hom e ru le .
In the United States lo ca l se lf-gov ern m en t
has been a tradition since co lon ia l tim es. Indeed,
the d e m ocra cy o f m any counties, towns, c it ie s ,
v illages and sch oo l d istr icts ante-date the d em oc
ra cy o f the sev era l states and o f the fed era l govern
m ent. Many o f the states o f the union have adopted
constitutional p rov is ion s allow ing lo ca l units o f
governm ent to reshape their own ch arters by the
adoption o f ch arter ord inances. New Orleans
W aterw orks Co. v . New O rleans, 164 U .S . 471
(1896); W alla W alla v s . W alla W alla W ater Co. ,
172 U .S . 1 (1898). The A m erican tradition fa v o r
ing lo ca l d e m ocra cy is so strong that within the
last two decades the m a jority o f people in m e tro
politan areas have gravitated to suburban com m uni
ties w here their person a l participation in lo ca l
governm ent is c lo s e , d ire ct and m eaningful. This
pattern o f governm ent is p r e c is e ly the pattern en
visaged by the federa l constitution in reserv in g non-
delegated pow ers to the states and the people. X
Am endm ent, Constitution o f the United States.
Knapp v s . S ch w eitzer, 357 U .S . 371 (1958); United
States v. B u tler , 297 U .S . 1 (1936). The goal o f
desegregation should not be used as a cloak to d is
guise a v io la tion o f lo ca l autonom y established by
state authority.
33
It has been fashionable in the last two decades
to ign ore the 10th Am endm ent. H ow ever, it is the
cornerstone o f lo ca l autonom y for states and m uni
c ip a lities. It m ust once again be acknow ledged and
revita lized . If the rulings o f the d is tr ic t cou rt and
the cou rt o f appeals a re upheld the Am endm ent w ill
be v io la ted .
F or the stated reasons the d ecis ion o f the Sixth
C ircuit Court o f Appeals should be re v e rse d .
R espectfu lly subm itted,
HAROLD H. FUHRMAN
4455 W est B rad ley Road
M ilwaukee, W isconsin 53223
A ttorney for A m icus Curiae
N ational Suburban League, Ltd.
Legal Briefs Company, 2700 Laura Lane, Middleton, Wisconsin 53562
N os. 73-434, 73-435, 73-436
J n tfa j jt t p r m o d jourt o f tee ® t M S ta te s
O c t o b e r T e r m , 1973
W i l l i a m G . M i l l i k e n , e t a l . , p e t i t i o n e r s
v .
R o n a l d G . B r a d l e y , e t a l .
A l l e n P a r k P u b l i c S c h o o l s , e t a l . , p e t i t i o n e r s
v.
R o n a l d G . 'B r a d l e y , e t a l .
T h e G r o s s e P o i n t e P u b l i c S c h o o l S y s t e m ,
PETITIONER
V .
R o n a l d G . B r a d l e y , e t a l .
ON W R IT S O F C E R T IO R A R I TO T H E U N IT E D S T A T E S C O U R T OF
A P P E A L S F O R T H E S IX T H C IR C U IT
memorandum for t h e u n ite d states as am icus cu riae
R O BER T H . BORK,
S o lic itor G eneral,
J. S T A N L E Y PO TTIN G ER ,
A ssis ta n t A tto r n e y G eneral,
D ep a rtm en t o f J ustice,
W ash in gton , D .C . S0530.
I N D E X
Page
Interest of the United States_____ .___ ______________________ 1
I. Introductory statement____;__________ _______________2
II. The remedy for unconstitutional school segregation
may extend beyond the boundaries of a single dis
trict only if, and to the extent that, the violation
has directly altered or substantially affected the
racial composition of schools in more than one
district-.^_____________.V.------------------------------------ ------ 11
III. The record in this case does not support the broad
metropolitan-wide remedy contemplated by the
court of appeals..._________ ____________ __________ _ 15
Conclusion.-______________ _____...__________ .______ :________. 27
CITATION S
Cases:
Alexander v. Holmes County Board o f Education, 396
U.S. 19_______________________________________________ 2
Bradley v. M illiken, 433 F. 2d 897_____________________ 3, 4
Bradley v. M illiken. 468 F. 2d 902, certiorari denied,
409 U.S. 844_________________________________________ 3, 5
Bradley v. School Board o f the City of Richmond, V ir
ginia, 338 F. Supp. 67, reversed, 462 F. 2d 1058,
affirmed sub. nom. School Board of the City o f Rich-
Richmond v. State Board of Education, 412 U.S. 92 _ 2,
7, 12, 14
Brown v. Board o f Education, 347 U.S. 483____________ 2
Cooper v. Aaron, 358 U.S. 1____________________________ 2
Goss v. Board o f Education, 373 U.S. 683______________ 2
Green v. County School Board o f N ew K ent County,
391 U.S. 430_________________________________________ 2
Haney v. County Board of Education o f Sevier County,
429 F. 2d 364_______________________________ 14
Keyes v. School District N o. 1, Denver, Colorado,
413 U.S. 189_________________________________________ 2, 18
(i)
532- 849— 74- -1
II
Cases— Continued „„Page
Norwood, v. Harrison, 413 U.S. 455____________________ 2
San Antonio Independent School District v. Rodriquez,
411 U.S. 1_______________________________ 5
Spencer v. Kugler, 404 U.S. 1027, affirming 326 F.
Supp. 1235______________________________________________ 1 1
Swann v. Boaid oj Education, 402 U.S. 1_______ 2,11, 15,23
United States v. Missouri, 363 F. Supp. 739___________ 14
United States v. Scotland Neck Boaid o/ Education,
407 U.S. 484__________________________________________ 14
United States v. Texas, 321 F. Supp. 1043, affirmed
447 F. 2d 441, certiorari denied sub. nom. Edgar v.
United States, 404 U.S. 1016____________________________ 14
Wright v. Council of City of Emporia, 407 U.S. 451___ 2,14
Statutes:
P.L. 92-318, Section 803, 86 Stat. 235, 372___________ 2
28 U.S.C. 1292(b)____________________________________ 8
28 U.S.C. 2403_________________________________________ 2
42 U.S.C. 2000c-6______________________________________ 2
42 U.S.C. 2000d_________ 2
42 U.S.C. 2000h-2_____________________________________ 2
Jit th dfmtrt of the Knitd
O c t o b e r T e r m , 1 9 7 3
No. 73-434
W i l l i a m G . M i l l i k e n , e t a l . , p e t i t i o n e r s
v.
R o n a l d G . B r a d l e y , e t a l .
No. 73-435
A l l e n P a r k P u b l i c S c h o o l s , e t a l . , p e t i t i o n e r s
v.
R o n a l d G . B r a d l e y , e t a l .
No. 73-436
T h e G r o s s e P o i n t s P u b l i c S c h o o l S y s t e m ,
PETITIONER
V .
R o n a l d G . B r a d l e y , e t a l .
ON W R IT S O F C E R T IO R A R I TO T H E U N IT E D S T A T E S C O U R T OF
A P P E A L S F O R T H E S IX T H C IR C U IT
memorandum por th e u n ited states as am icu s cur ia e
IN T E R E S T OF T H E U N IT E D S T A T E S
The United States has substantial responsibility un
der 42 U.S.C. 2000c-6, 2000d, and 2000h-2, with respect
(i)
2
to school desegregation. This Court’s resolution of the
issues presented in this case will affect that enforce
ment responsibility. The United States participated as
an intervenor in this case in the court o f appeals1 and
has participated as amicus curiae or as a party in
most of this Court’s previous school desegregation
cases, including Brown v. Board of Education, 347
U.S. 483; 349 U.S. 294; Cooper v. Aaron, 358 U.S. 1;
Goss v. Board of Education, 373 U.S. 683; Green v.
County School Board of New Kent County, 391 U.S.
430; Alexander v. Holmes County Board o f Education,
396 U.S. 19; Swann v. Board of Education, 402 U.S.
1- Wright v. Council of City of Emporia, 407 U.S.
451; School Board of the City of Richmond v. State
Board of Education, 412 U.S. 92 •, K ey es v. School Dis
trict No. 1, Denver, Colorado, 413 U.S. 189; and Nor
wood v. Harrison, 413 U.S. 455.
I
INTRODUCTORY STATEM ENT
The issue in this case is whether the remedy for
illegal racial segregation of the Detroit public schools
may properly include a cross-district pupil assignment
plan between the Detroit school district and neighbor
ing districts, where the record does not show whether
1 The United States intervened in the court of appeals pur
suant to 28 U.S.C. 2403, because the constitutionality of an Act
of Congress (Section 803 of P.L. 92-318, 86 Stat. 235, 372) had
been called into question. The court of appeals found it un
necessary to consider the applicability or constitutionality of the
statute in question (Pet. App. 189a), which, by its terms, ex
pired on January 1, 1974.
3
constitutional violations affected the racial composition
of schools outside the Detroit district and where the
suburban districts have had no effective opportunity
to be heard on the propriety of a metropolitan-wide
remedy.
This case began in August 1970 when certain of the
respondents, primarily black parents and their chil
dren who attended schools in the Detroit public school
system, sued city and state officials, alleging that the
officials had pursued a policy and practice of racial
discrimination in the operation of the Detroit public
schools, which had resulted in a racially segregated
school system.2 The plaintiffs sought, inter alia, an or
der requiring the defendants to present a plan “ for the
elimination of the racial identity of every school in the
[Detroit] system and to maintain now and hereafter
a unitary, nonracial school system” (Pet. App. 15a),
The case was twice before the court of appeals on pre
liminary matters (433 P. 2d 897, 438 F. 2d 945), and a
trial on the merits was held from April to July of
1971.
In September 1971, the district court entered its
findings o f fact and conclusions of law on the issue of
racial segregation in the Detroit schools (Pet. App.
17a-39a). It found that the Detroit school board had
engaged in official acts of racial discrimination that
2 The complaint also alleged that a recently-adopted Act of
the state legislature unconstitutionally interfered with a volun
tary plan of desegregation adopted by the Detroit Board of
Education (Pet. App. 8a-10a). The Act was held unconstitu
tional by the court of appeals in an earlier phase of this liti
gation (433 F. 2d 897).
4
had contributed to racial segregation in the school
system. The board’s use o f optional attendance zones in
areas undergoing racial transition and between schools
of opposite predominant racial composition “ allowed
whites to escape integration” {id. at 25a) ; the board
transported children on a racially discriminatory
basis ( ibid. } ; it gerrymandered attendance zones and
altered grade structures “ in a manner which has had
the natural, probable and actual effect o f continuing
black and white pupils in racially segregated schools”
{id. at 25a-26a); and it pursued discriminatory
school construction policies (id. at 27a, 28a).
The court also found that official acts o f state agen
cies contributed to the racial segregation in Detroit’s
schools. The enactment o f state legislation rescinding
a voluntary plan of desegregation that had been
adopted by the Detroit board was designed, the court
held, “ to impede, delay and minimize racial integra
tion in Detroit schools” {id. at 28a); 3 and state offi
cials, as well as the Detroit board, participated in
racially discriminatory decisions concerning school
construction ( ibid.) .4 The court also concluded that
Michigan law vests in the State Board o f Education
“ supervision over all public education” {id. at 36a).
3 The details of the statute are set forth in the opinion of
the court of appeals holding it unconstitutional (433 F. 2d
897).
4 The court also noted that state law did not provide funds
or authority for the transportation of pupils in Detroit, though
it did provide for transportation of some pupils attending
suburban districts. The court stated that this “and other fi
nancial limitations, such as those on bonding and the working
of the state aid formula whereby suburban districts were able
to make far larger per pupil expenditures despite less tax
5
Turning to the question of an appropriate remedy
for the constitutional violations, the district court ad
dressed a pending motion by intervening defendants
to join as additional parties defendant 85 school dis
tricts in the three counties surrounding Detroit, on
the ground that effective relief could not be achieved
without their presence (see I App. 119-129).* 5 The
court deferred ruling on that motion, pending the
submission o f proposed remedies by existing parties
(Pet. App. 38a-39a). In a subsequent hearing, the
court stated that “ perhaps only a plan which em
braces all or some of the greater Detroit metropolitan
area can hope to succeed” (icl. at 40a). It ordered the
Detroit school board to submit a proposed plan for
desegregation within its district and ordered the state
defendants to submit a “ metropolitan plan of deseg
regation” (id. at 43a).6
Before ruling on the plans submitted by the state and
city defendants, the district court granted motions by
some of the suburban school districts to intervene in the
proceeding, but restricted their participation essentially
to advising the court on the propriety of a metropolitan
wide remedy in general and on the merits of the par-
effort, have created and perpetuated systematic educational
inequalities” (Pet. App. 27a). The court did not indicate
whether any such disparities had affected the racial composition
of the school districts. Cf. San A n ton io Independent School
District v. R odriguez , 411 U .S. 1.
5 “App.” refers to the five-volume joint appendix, each
volume of which is separately paginated.
8 The court of appeals held that this order was not appeal-
able, (4&S F. 2d 902), and this Court denied certiorari (409 U.S.
844).
6
tieular desegregation plan submitted to the court
( I App. 204-207).
The district court thereafter issued the three rul
ings that were principally at issue in the court of
appeals.
(1) On March 24, 1972, in its ruling on the pro
priety of considering a metropolitan-wide remedy
(Pet. App. 48a-52a), the district court addressed the
question whether it could “ consider relief in the form
of a metropolitan plan, encompassing not only the
City o f Detroit, but the larger Detroit metropolitan
area” (id. at 49a). It rejected both the state defend
ants’ argument that no state action caused the seg
regation of the Detroit schools, and the suburban
districts ’ contention that interdistrict relief is inappro
priate unless the suburban districts have themselves
committed violations. The court concluded (id. at
51a) :
[ I ]t is joroper for the court to consider
metropolitan plans directed toward the de
segregation of the Detroit public schools as an
alternative to the present intra-city desegrega
tion plans before it and, in the event that the
court finds such intra-city plans inadequate to
desegregate such schools, the court is o f the
opinion that it is required to consider a metro
politan remedy for desegregation.
(2) On March 28, 1972, the court issued its findings
and conclusions on the three “ Detroit-only” plans
submitted by the city board and the plaintiffs (id. at
53a-58a). It found that the best of the three plans
“ would make the Detroit system more identifiably
Black * * * thereby increasing the flights o f Whites
7
from the city and the system” (id. at 55a). Prom this
the court concluded that the plan “ would not accom
plish desegregation” and that desegregation “ cannot
be accomplished within the corporate geographical
limits of the city” (id. at 56a). It accordingly held
that it “ must look beyond the limits of the Detroit
school district for a solution to the problem of seg
regation” (id. at 57a). Relying on Bradley v. School
Board of the City of Richmond, Virginia, 338 P. Supp.
67 (E .D .Va.), reversed, 462 P. 2d 1058 (C.A. 4), affirmed
by an equally divided Court, 412 P.S. 92, the court held
that “ [s]chool district lines are simply matters of politi
cal convenience and may not be used to deny constitu
tional rights” (Pet. App. 57a).
(3) On June 14, 1972, the district court issued a rul
ing on the desegregation area (id. at 97a-105a) and
related findings and conclusions (id. at 59a-96a). The
court acknowledged at the outset that it had “ taken no
proofs with respect to the establishment of the bound
aries of the 86 public school districts in the counties
[in the Detroit area], nor on the issue of whether,
with the exclusion of the city of Detroit school district,
such school districts have committed acts of de jure
segregation” (id. at 60a). Nevertheless, it designated
53 of the suburban school districts plus Detroit as the
“desegregation area” (id. at 101a) and appointed a
panel to prepare and submit “ an effective desegrega
tion plan” for the Detroit schools that would encom
pass the entire desegregation area (id. at 99a). The
plan was to be based on 15 clusters, each containing
part of the Detroit system and two or more suburban
districts (Y App. 111-115), and was to “ achieve the
532- 849— 74- 2
8
greatest degree of actual desegregation to the end that,
upon implementation, no school, grade or classroom
[be] substantially disproportionate to the overall pupil
racial composition” (Pet. App. 101a-102a).
A divided court of appeals, sitting en banc, affirmed
in part, vacated in part, and remanded for further
proceedings (Pet. App. 110a-240a).7 The court held,
first, that the record supports the district court’s
findings on the constitutional violations committed
by the Detroit board (id. at 118a-151a) and by the
state defendants (id. at 151a-157a).8 It stated that
7 The district court had certified most of the foregoing rul
ings for interlocutory review pursuant to 28 U.S.C. 1292(b)
(I App. 265-266), and a panel of the court of appeals had
granted leave to appeal (Pet. App. 108a-109a). The case was
initially decided on the merits by a panel, but the panel’s
opinion and judgment were vacated when the court determined
to rehear the case en banc (see Pet. App. llla -1 1 2 a ).
s W ith respect to the State’s violations, the court of appeals
held: (1) that, since the city board is an instrumentality of
the State and subordinate to the state board, the segregative
actions of the Detroit board “are the actions of an agency of
the State” (Pet. App. 151a) ; (2) that the state legislation
rescinding Detroit’s voluntary desegregation plan (see p. 4,
supra) contributed to increasing segregation in the Detroit
hools (ib id .) ; (3) that under state law prior to 1962 the state
iard had authority over school construction plans and must
, .erefore be held responsible “ for the segregative results” (ibid.) ;
(4) that the “ State statutory scheme of support of transportation
for school children directly discriminated against Detroit” (id.
at 154a) by not providing transportation funds to Detroit on the
same basis as funds were provided to suburban districts (id. at
151a) ; and (5) that the transportation of black students from one
suburban district to a black school in Detroit must have had the
“approval, tacit or express, of the State Board of Education” (id-
at 152a).
9
the acts of racial discrimination shown in the record
are “ causally related to the substantial amount of
segregation found in the Detroit school system' (id.
at 157a), and that “ the District Court was therefore
authorized and required to take effective measures to
desegregate the Detroit Public School System” (id.
at 158a).
The court of appeals also agreed with the district
court that “ any less comprehensive a solution than
a- metropolitan area plan would result in an all black
school system immediately surrounded by practically
all white suburban school systems, with an over
whelmingly white majority population in the total
metropolitan area” (id. at 163a-164a). It stated that it
could “not see how such segregation can be any less
harmful to the minority students than if the same re
sult were accomplished within one school district”
(id. at 164a).
The court of appeals accordingly concluded that
“ the only feasible desegregation plan involves the
crossing of the boundary lines between the Detroit
School District and adjacent or nearby school dis
tricts for the limited purpose of providing an effective
desegregation plan” (id. at 172a). It reasoned that
such a plan would be appropriate because of the
State’s violations, and could be implemented because
of the State’s authority to control local school dis
tricts. “ [T]he State has committed de jure acts of
segregation and * * * the State controls the instru
mentalities whose action is necessary to remedy the
harmful effects of the State acts” (ibid.). An inter-
10
district remedy is thus “ within the equity powers of
the District Court” (id. at 173a) .9
The court of appeals expressed no views on the pro
priety of the district court’s “ desegregation area.” It
held that all suburban school districts that might be
affected by any metropolitan-wide remedy should be
made parties to the case on remand and be given an
opportunity to be heard with respect to the scope and
implementation of such a remedy (id. at 177a). Under
the terms of the remand, however, the district court
need not receive further evidence on the issue of segre
gation in the Detroit schools or on the propriety of a
Detroit-only remedy (id. at 178a).
It is our view that the remedy for unconstitutional
segregation of the public schools in a school district
can properly extend beyond the boundaries of the dis
trict only where the violation has directly altered or
substantially affected the racial composition of schools
outside the district and only to the extent necessary to
eliminate the segregative effects of the violation.
Where the schools o f only one district have been af
fected, there is no constitutional requirement that the
relief include a balancing of the racial composition of
that district’s schools with those of surrounding
districts.
The record does not support the ruling of the court
9 The court sought to distinguish B radley v. School Board of
the C ity o f R ichm ond , V irginia , 462 F. 2d 1058 (C .A . 4 ), affirmed
by an equally divided Court, 412 U .S. 92, on the grounds that the
district court in that case had ordered an actual consolidation of
three school districts and that Virginia’s constitution and statutes,
unlike Michigan’s gave the local boards exclusive power to operate
the public schools (Pet. App. 175a).
11
of appeals that a metropolitan-wide remedy is appro
priate to cure the violations found in this case, vir
tually all of which affected only the schools in the De
troit system. The case should be remanded to permit
all the parties, many of whom have not yet been heard
in the district court, to present evidence and argument
on the existence of any constitutional violations that
have directly altered or substantially affected the racial
composition of schools outside Detroit, and on the ap
propriate remedy for any such violation.
I I
THE REMEDY FOR UNCONSTITUTIONAL SCHOOL SEGREGA
TION MAY EXTEND BEYOND TH E BOUNDARIES OF A
SINGLE DISTRICT ONLY IE, AND TO T H E EXTENT THAT,
THE VIOLATION HAS DIRECTLY ALTERED OR SUBSTAN
TIALLY AFFECTED TH E RACIAL COMPOSITION OP SCHOOLS
IN MORE THAN ONE DISTRICT
This Court held in Swann v. Board of Educationr
402 U.S. 1, Id, that the task in fashioning school de
segregation relief “ is to correct * * * the condition
that offends the Constitution.” It follows that “ the
nature of the violation determines the scope o f the
remedy” (ibid.).
The mere co-existence, within a State, o f adjacent
school districts having disparate racial compositions
is not itself a constitutional violation. Spencer v.
Bugler, 404 U.S. 1027, affirming 326 F. Supp. 1235
(D. N. J .) .“ As Solicitor General Griswold explained 10
10 In Spencer this Court affirmed the district court’s decision
that, at least in States not recently operating dual school sys
tems, extreme racial imbalance, without more, does not author
ize—let alone require— the court to revise neutrally established
school district lines.
12
last Term in the Memorandum for the United States
as Amicus Curiae in School Board of the City of Rich
mond, Virginia v. State Board of Education (No. 72-
549), supra, at pp. 13-15 (footnote omitted) :
In determining that one school system for the
entire region should be created, the district
court relied upon (Pet. App. 187a) this Court’s
statement in Swann, supra, 402 U.S. at 26, that
for remedial purposes, there is “ a presumption
against schools that are substantially dispropor
tionate in their racial composition.” But dis
proportionate in relation to what? Surely not
to some absolute standard, for the Constitution
does not establish any fixed ratio of black stu
dents to white students that must be achieved.
Instead, whether a particular school is racially
imbalanced or identifiable can be determined
only by comparing it with “ the racial composi
tion o f the whole school system.” Swann v.
Board of Education, supra, 402 U.S. at 25; see
also id. at 24.
Thus, the question whether, for example, an
elementary school having a student body 70 per
cent black and 30 percent white is racially im
balanced or has a substantially disproportion
ate racial composition is in itself unanswerable.
Some frame of reference is needed and, as
Swann indicates, the proper comparison (to the
extent that racial balance is relevant) is with
the racial composition of the population in the
school system operating the particular school
since the purpose is to ensure complete elimina
tion o f the dual system by having one set of
schools for both blacks and whites. And under
Swann there would be no presumption against
schools, such as the one in the example above, if
13
these schools reflected the black-white ratio of
the entire school system. 402 U.S. at 25-26.
W hy then would there be a presumption
against the school system itself with the same
70:30 ratio o f blacks to whites, as the district
court concluded here with respect to the school
system of the City of Richmond? (Pet. App.
186a-188a.) Stated differently, on what basis
could the district court conclude that its remedy
should reach outside the school system of the
City o f Richmond? Apparently, the court be
lieved that it must look beyond the Richmond
system in fashioning relief because the City
school system is racially disproportionate or
imbalanced in relation to the adjacent County
school systems, thereby resulting in racial iden-
tifiability of the three systems (e.g., Pet. App.
185a-187a, 230a, 237a-238a). But the court had
to look beyond the Richmond system and com
pare it with the surrounding Counties in the
first place in order to determine whether the
Richmond system is racially imbalanced in com
parison with the adjacent systems. This is not
only circular as a reason for fashioning relief
beyond the Richmond system, but also heedless
of the extent of the constitutional violation be
ing remedied.
Thus, in our view, an interdistrict remedy, requiring
the restructuring of state or local government entities,
is appropriate only in the unusual circumstance where
it is necessary to undo the interdistrict effect of a con
stitutional violation. Specifically, if it were shown that
the racially discriminatory acts of the State, or of sev
eral local school districts, or of a single local district,
have been a direct or substantial cause of interdistrict
14
school segregation, then a remedy designed to eliminate
the segregation so caused would be appropriate.
One example of circumstances warranting interdis
trict relief is where one or more school systems have
been created and maintained for members off one race.
See, e.g., United States v. Texas, 321 F. Supp. 1043
(E.D. Texas), affirmed, 447 F. 2d 441 (C.A. 5), cer
tiorari denied sub nom. Edgar v. United States, 404
U.S. 1016; H aney v. County Board o f Education of
Sevier County, 429 F. 2d 364 (C.A. 8). Similarly,
where the boundaries separating districts have been
drawn on account of race, an interdistrict remedy is
appropriate. See, e.g., United States v. Missouri, 363
F. Supp. 739 (E.D. M o.).11 Some form of interdistrict
relief may also be appropriate where pupils have been
transferred across district lines on a racially discrim
inatory basis.
In each instance of an interdistrict violation, the
remedy should, in accordance with traditional prin
ciples of equity and the law of remedies, be tailored to fit
the violation, particularly in view of the deference
owed to existing governmental structures. See, e.g.,
Bradley v. School Board o f the City o f Richmond, Vir
ginia, supra, 462 F. 2d at 1067-1069; cf. W right v. Coun
cil o f City o f Emporia, supra, 407 U.S. at 478 (Burger,
C. J., dissenting). Any modification o f those structures
11 Cf. Wright v. Council of City o f Emporia, 407 U.S. 451;
United States v. Scotland Neck Board of Education, 407 U.S.
484. In those cases, this Court held that an “ attempt by state
or local officials to carve out a new school district from an ex
isting district that is in the process of dismantling a-dual
school system” may be enjoined by the district court if it
would impede the dismantling o f the dual system (id. at 489).
15
should be narrowly framed to eliminate the interdistrict
segregation that has been caused by the particular viola
tion, so as to avoid unnecessary judicial interference
with state prerogatives concerning the organization of
local governments. Thus, a single instance of dis
criminatory cross-district transfers between only two
school districts (see pp. 19-20, infra) would not warrant
the kind o f metropolitan-wide interdistrict remedy in
volving 54 districts that the courts below contemplate
here. The appropriate relief should be limited to cor
recting the segregative conditions caused by the trans-
THE RECORD IN TH IS CASE DOES NOT SUPPORT TH E BROAD
METROPOLITAN-WIDE REMEDY CONTEMPLATED BY THE
COURT OF APPEALS
This Court does not have before it a final order
adopting a particular plan of desegregation. It is re
viewing, instead, a general determination that the seg
regation of the Detroit public schools shown on this
record warrants an interdistrict remedy potentially
embracing much or all of the 86-district metropolitan
12 Moreover, even a finding o f some interdistrict violations
would not mean that extensive interdistrict bussing should be
required as a remedy regardless o f its disruptive effects or other
costs. This Court specifically stated in Swann that “ [a]n objec
tion to transportation o f students may have validity when the
time or distance o f travel is so great as to either risk the health
of the children or significantly impinge on the educational pro
cess” (402 U.S. at 30-31), and it indicated that in remedying
school segeBgatiqn, the, courts should engage in the process of
informed ^recondliation o rurts of
fers.12
I l l
equity have traditionally
16
area. In our view, the record does not support such a
remedy, because it does not show that the constitu
tional violations have directly altered or substantially
affected the racial composition of schools in districts out
side of Detroit.
Heither the district court nor the court of appeals
predicated its conclusion concerning the propriety of
a metropolitan-wide remedy on the existence of any
violation caused by or affecting more than one district.
There is, first of all, no finding that any school district
other than Detroit has engaged in racial discrimina
tion : the district court specified that it had taken no
evidence on whether the suburban districts “have com
mitted acts o f de jure segregation” (Pet. App. 60a).
Nor is there any proof that state or local officials
gerrymandered district lines for purposes of racial
discrimination. On this point, too, the district court
took no evidence ( ibid.).
The district court found— and the court of appeals
upheld the findings—that the Detroit school board
had committed unlawful acts of discrimination caus
ing substantial racial segregation in the Detroit
schools and that the state defendants had also com
mitted violations contributing to the segregation in
those schools {id. at 118a-!57a; see id. at 24a-28a, 33a-
38a). But the record thus far does not establish any
basis for concluding that the state or city violations
have directly altered or substantially affected the racial
composition of schools outside Detroit.
The district court, in its September 27, 1971, rul
ing on the issue of segregation, considered “ the pres
ent racial complexion of the City of Detroit and its
17
public school system” in light o f “ what has happened
in the last half century” in the Detroit metropolitan
area (Pet. App. 19a). In the course of that general
historical review, the court stated {id. at 23a) : “ Gov
ernmental actions and inaction at all levels, federal,
state, and local, have combined, with those of private
organizations, such as loaning institutions and real
estate associations and brokerage firms, to establish
and to maintain the pattern of residential segrega
tion throughout the Detroit metropolitan area.” While
the court also noted that “ there is an interaction be
tween residential patterns and racial composition of
the schools” {id. at 24a), its findings of constitutional
violations and racial segregation in the schools were
limited to “ the Detroit school system” {ibid.).13 It
did not find that any suburban school segregation was
caused by any state or local acts o f da jure racial
discrimination.
Similarly, the court o f appeals concluded that the
discriminatory practices o f the state and city defend
ants are “ causally related to the substantial amount
of segregation found in the D etroit school system”
(id, at 157a; emphasis added) and that the district
court was required “ to desegregate the D etroit Public
School System ” {id, at 158a; emphasis added).14 The * 11
13 The district court’s conclusions were that “ [t]he public
schools operated by defendant Board are * * * segregated on
a racial basis” (Pet. App. 26a; emphasis added) and that the
State and the Detroit board “have committed acts which have
been causal factors in the segregated condition o f the public
schools of the City of Detroit'1'1 {id, at 33a; emphasis added).
11 The decision of the court of appeals dealt at some length
with the question of violations within the city o f Detroit (see
Pet. App. 118a-151a). Although one of the petitioners appears
18
court of appeals also stated, however, that “ the State
has been guilty of discrimination which had the effect
of creating and maintaining racial segregation along
school district lines” (id . at 172a). That statement ap
pears in the section o f the court’s opinion relating to
the propriety of an interdistrict remedy in circum
stances where a Detroit-only remedy would lead to an
overwhelmingly black city school system. The state
ment is followed by a reference to an earlier section
of the opinion concerning the violations committed by
the State (id . at 151a-157a). The earlier section itself,
however, cites only one instance of a possible inter-
district violation.
As we indicated above tibm l (p. 8, n. 8, supra), the
court o f appeals found that the State committed five
constitutional violations. With respect to four of those
violations, there is nothing to indicate that any of them
affected the racial character of schools outside the
Detroit system. First, the court held that the State
was derivatively responsible for the Detroit board’s
violations (Pet. App. 151a), but, so far as this record
shows, those violations themselves affected only the
schools within the Detroit district. Second, the State’s
legislative interference with Detroit’s voluntary de
segregation plan contributed, in the court’s words,
only to “ segregation of the Detroit school system”
now to challenge the affirmance by the court of appeals of the
findings concerning intra-Detroit violations (see Brief for Pe
titioner in 73-436, pp. 15-18), the correctness o f that aspect of
the decision was not questioned in any of the petitions. In any
event, this aspect of the decisions below appears consistent with
this Court’s decision last Term in Keyes v. School District No.
1, Denver, Colorado, 41317.S. 148-.
19
(ibid.). Third, the court held that the State’s author
ity to supervise school site selection and to approve
building construction plans means that the State is
responsible for “ the segregative results” of “ Detroit’s
school construction program” (ibid.) ; again, there is
no basis for concluding that Detroit’s construction
program affected suburban districts.15 Fourth, there
is no indication in the record or in the opinions below
how, if at all, the availability of state-financed trans
portation for some Michigan students outside Detroit
but not within Detroit (ibid.) might have affected the
racial character o f any of the State’s school districts.
The fifth violation that the court of appeals attrib
uted to the State is the only one that can be said, on
the present record, to have had some interdistrict ra
cial impact. In one instance, the suburban Carver
school district arranged by contract to have its black
high school students educated in a predominantly
black Detroit high school, because “ no white sub
urban district (or white school in the city) would
take the children” (Pet. App. 137a). The court of
appeals stated that this cross-district transportation
“ could not have taken place without the approval,
tacit or express, of the State Board of Education”
(id. at 152a). Of course, such an arrangement be
tween the Carver and Detroit school boards was state
15 The court of appeals asserted that, “ as was pointed out
above, the State approved school construction which fostered
segregation throughout the Detroit metropolitan area” (Pet.
App. 157a). But its only reference is to an earlier section of
the opinion that relates to the segregative impact in Detroit of
the school construction program in that district (id. at 144a-
151a).
20
action which may have amounted to unconstitutional
racial segregation,16 regardless of whether the State
Board participated in it. But the appropriate remedy
would be one tailored to fit that possible violation—
also regardless o f State Board participation—since
such participation would not change the nature or
consequences of the violation. An isolated instance of
cross-district transfers on account of race between
only two school districts (and possibly involving re
fusals for racial reasons by schools in one or a small
number of other districts to accept the transferred stu
dents) cannot, as a matter of equity, support a metro
politan-wide interdistrict remedy involving 54 or more
school systems.
Indeed, neither the district court nor the court of
appeals predicated its holding on the existence of a
violation affecting the racial composition o f the sub
urban districts. The district court determined that a
metropolitan-wide remedy would be appropriate to
desegregate the Detroit schools, because it concluded
that any effective plan limited to Detroit “ would ac
centuate the racial identifiability o f the district as a
Black school system, and would not accomplish deseg
regation” (Pet. App. 56a). The court o f appeals
reached the same conclusion: “ [A]in- Detroit only
desegregation plan will lead directly to a single seg
regated Detroit school district overwhelmingly black
in all of its schools” (id. at 172a-173a). Such a rem
edy “ cannot correct the constitutional violations here
in found” (id. at 173a).
The prediction that massive “ white flight” will re
sult from an effective intra-Detroit desegregation
16 See Pet. App. 96a, 137a-139a; I I App. 109-111, 131.
21
plan is inherently speculative, and in any event does
not change the nature of the violation to be remedied.
For that reason, such a prediction does not in itself
warrant interdistrict relief. On this aspect of the case,
also, we adhere to the following views stated last
Term by Solicitor General Griswold in response to
a similar prediction by the district court in the Rich
mond case (Memorandum for the United States as
Amicus Curiae, supra, pop. 17-20; footnotes omitted or
renumbered) :
The district court also believed that the school
system of the City of Richmond could not be
come a unitary system within its boundaries
because a “ viable racial m ix” would not be pos
sible in light o f the racial composition of Rich
mond’s population (Pet. App. 207a, 420a, 519a;
see, e.g., id. at 201a, 230a, 237a-238a, 436a-442a,
444a). The court pointed to evidence that the
current proportion o f blacks to whites in the
Richmond school system has resulted in whites
leaving Richmond’s public schools and that un
less the trend were reversed, the City’s schools
might become all black.
The duty of the district court in this case
was to ensure that the Richmond school system
converted to a unitary system. And as we have
discussed, see pp. 11-17, supra, as long as the
school authorities operate just schools instead
of one set of schools for blacks and another for
whites, it matters not at all whether the system
has more black students than white students or
vice-versa. The schools of Vermont are not seg
regated even though most o f them are all white.
Under the district court’s theory and its con
solidation order, which would reverse the racial
22
composition o f the Richmond schools from ma
jority black to majority white, the apparent
goal is to have a school system with substan
tially more white children than black children.
But the Fourteenth Amendment does not prefer
predominantly white school systems over pre
dominantly black school systems and it does not
sanction the district court’s transforming its
preference in this regard into a constitutional
command.
W e of course agree that the federal courts
have wide discretion to bring about unitary
school systems. But as Chief Justice Marshall
stated long ago, to say that the matter is within
a court’s discretion means that it is addressed
not to the court’s “ inclination, but to its judg
ment ; and its judgment is to be guided by sound
legal principles.” 17 The purpose of a court-
ordered remedy in these cases is to cure the vio
lation, to correct “ the condition that offends the
Constitution.” Sivann v. Board of Education,
supra, 402 U.S. at 16. Yet here the district court,
instead of ordering relief within the bounds of
Richmond’s constitutional violation, went far
beyond in the hope of forestalling the result of
a possible migration of whites from the City, a
result not in itself unconstitutional but thought
by the district court to be undesirable.
I f a certain desegregation plan would become
ineffective shortly after implementation this is
certainly something the district court should
consider. Surely it would have been proper in
this case for the district court to seek a remedy |
within the Richmond system that promised
17 United States v. Burr, 25 Fed. Cas. 30, 35 (No.
U,692d, 1807).
23
maximum stability. But the desire to preserve
the existing.racial character of the City of Rich
mond or of its school system is not of constitu
tional dimensions and does not warrant includ
ing within the scope of relief other school
systems that are uninvolved in Richmond’s vio
lation. Petitioners may prefer a consolidated
school system with a large, stable white enroll
ment ; the Constitution does not.
Indeed, even in the context of relief within a single
district, this Court clearly indicated in Swann (402
U.S. at 31-32) that the proper remedy in school de
segregation cases does not include pursuit o f demo
graphic changes. When the violations found have been
cured, “ [t]he [school] systems would then be ‘unitary’
* * *” (402 U.S. at 31), and “ in the absence o f a
slowing that either the school authorities or some
other agency of the State has deliberately attempted
to fix or alter demographic patterns to affect the
racial composition of the schools, further intervention
by a district court should not be necessary” (402 U.S.
at 32). Obviously, there is even less reason to extend
the remedy across district lines on the basis o f demo
graphic differences (in the absence o f interdistrict
violation).
Nor, in our view, do the district court’s general re
marks about housing discrimination {supra, p. 17),
on which its present decision apparently was not
based, provide a proper foundation for the interdistrict
relief contemplated by the courts below. Indeed, more
specific evidence and findings of housing and other
collateral discrimination were relied upon last Term
1!1 the Richmond case, and we adhere, on this point
24
as well, to the views stated in the Memorandum for
the United States as Amicus Curiae in that case (pp.
23-26; footnotes renumbered).
Petitioners rely primarily on evidence of
housing discrimination and o f various kinds of
either intrasystem or state-wide racial dis
crimination to overcome this presumption.18 The
housing pattern in the Richmond metropolitan
area is similar to that found in most metro
politan areas o f this country. The inner city
has a large black population and the surround
ing suburbs are primarily white. While the
causes of this housing pattern are manifold, the
court o f appeals accepted the contention “that
within the City o f Richmond there has been
state (also federal) action tending to perpetu
ate apartheid o f the races in ghetto patterns
throughout the city, and that there has been
state action within the adjoining counties also
tending to restrict and control the housing
location of black residents” (Pet. App. 572a).
Other acts cited as establishing an inter-sys
tem violation are Virginia’s “ massive resist
ance” campaign against school desegregation
(Pet. App. 313), various types of delaying ac
tions undertaken to resist desegregation of the
Richmond schools (Pet. App. 189a), actions by
state officials tending to reinforce racism (Pet.
App. 189a), construction of racially identifiable
schools after Brown I (Pet. App. 287a), dis
crimination in public employment in Henrico
and Chesterfield Counties (Pet. App. 510a),
18 They also mention past instances of transportation of
black students across school division lines in the State in
order to perpetuate state-enforced segregation o f schools
(Pet. App. 360a; cf. id. at 388a). * * *
2 5
lack of public transportation for poor persons
(Pet. App. 514a), past state restrictions on in
ter-racial contacts of various kinds,19 and state
approval of school construction sites without
regard to the impact on school desegregation
(Pet. App. 206a).
Such acts are a shameful part of our history,
and the Nation has in recent years enacted
laws to remedy many of them. See, e.g., 42
TJ.S.C. 1973 (voting), 2000e (employment), and
3601-3619 (housing). See also the Virginia
Fair Housing Law, enacted in 1972, Code of
L irginia, Title 36, Chapter 5. But even if some
or all of these acts, including participation in
residential housing discrimination, have con
tributed in some degree to the present racial
composition o f the public schools in the
three school systems within the metropolitan
Richmond area, the question remains whether
there is a sufficiently proximate and substan
tially causal relationship to the racial disparity
between school systems to warrant a conclu
sion that state-enforced racial discrimination
in the public schools has resulted.20
Racial discrimination in such areas as hous
ing, employment, and public expenditures are
19 See, e.g., Boynton v. Virginia, 364 U.S. 454; Loving
v. Virginia, 388 U.S. 1; NA AGP v. Button, 371 U.S. 415.
20 The past existence of state-imposed discrimination,
including school segregation, might, for example, also have
contributed in some degree to decisions by individuals to
discriminate in their social relationships, but this does not
in itself necessarily convert what would otherwise be pri
vate discrimination into state action. Compare Moose
Lodge No. 107 v. Irvis, 407 U.S. 163, and Evans v. Abney,
396 U.S. 435, with Lombard v. Louisiana, 373 U.S. 267,
Robinson v. Florida, 378 U.S. 153, and Burton v. Wilming
ton Parking Authority, 365 U.S. 715.
26
serious problems that must be attacked directly
so that they can be eliminated from our society.
But as this Court said in Swann, supra, 402
■U.S. at 22-23:
The elimination of racial discrimination
in public schools is a large task and one
that should not be retarded by efforts to
achieve broader purposes lying beyond
the jurisdiction of school authorities. One
vehicle can carry only a limited amount
of baggage. It would not serve the impor
tant objective of Brown I to seek to use
school desegregation cases for purposes
beyond their scope although desegrega
tion o f schools ultimately will have im
pact on other forms of discrimination.
W e therefore conclude that the record in the present
case does not warrant the fashioning of a metro
politan-wide remedy. W e recognize, however, that, for
practical purposes, the record was made at a time
when only an intra-Detroit remedy was sought (see
Pet. App. 13a-15a) and when many of the suburban
school districts were not parties. W e submit that the
appropriate disposition in these circumstances is to
remand the case to the district court with instructions
to join as parties all the school districts in the three-
county metropolitan area. The district court should
take evidence and make findings of fact concerning
any constitutional violations involving the suburban
districts and any interdistrict racially segregatory im
pact o f the Detroit violations. I f no such violation or
impact is shown, relief should be limited to Detroit. If
any such violation or impact is shown, the district
court should, after considering the evidence and argu-
27
ment of all affected school districts, fashion appropri
ate relief to remedy the particular violations found.
CONCLUSION
For the foregoing reasons, the judgment of the court
of appeals should be vacated and the case should be
remanded for further proceedings in accordance with
the principles stated herein.
Respectfully submitted.
R o b e r t H . P o r k ,
Solicitor General.
J. S t a n l e y P o t t i n g e r ,
Assistant Attorney General.
F e b r u a r y 1 9 7 4 .
U.S. GOVERNMENT PRINTING OFFICE: 1974
- . ! 1 : ■ •; ■
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i|
IN THE
gutprem ? GJmtrt o f tlto i^tatp s
O cto ber T e r m , 1973
No. 73-434
WILLIAM G. MILLIKEN, et al.
P etitio n ers ,
v.
RONALD G. BRADLEY, et al.
R esp o n d en ts .
and No. 73-435 and No. 73-436
BRIEF AM ICUS CURIAE
OF CITY OF HARTFORD, CO N N ECTICU T
IN SUPPORT OF RESPONDENT, BRADLEY
A l e x a n d e r A . G oldfarb
C orp ora tion C o u n sel
fo r th e
City of Hartford
Municipal Building
550 Main Street
Hartford, Connecticut 06103
CttOH r im . MINTIM. NMTPOM
1
AMICUS CURIAE AUTHORITY................................................1
INTEREST OF THE CITY OF HARTFORD............................. 1
QUESTION PRESENTED........................................................ 3
ARGUMENT
I. INTRODUCTORY BACKGROUND ................. 3
A. The Structure of Changes in Detroit and
Hartford fit into a Pattern of Development
in the Nation’s Metropolitan Areas............ 3
TABLE OF CONTENTS Page
II. STATE SCHOOL AUTHORITIES, FOR THE
STATE OF MICHIGAN AND ELSEWHERE IN
THE COUNTRY, THROUGH AFFIRMATIVE
ACTS, HAVE FOSTERED, NURTURED, AND
PROMOTED THE USE OF SCHOOL DIS
TRICT BOUNDARY LINES TO ACCOM
PLISH THE SEGREGATION OF PUBLIC
SCHOOL CHILDREN ON THE BASIS OF
RACE AND ARE, THEREFORE, IN CLEAR
VIOLATION OF E Q U A L PROTECTION
GUARANTEES AS ESTABLISHED UNDER
THE FOURTEENTH AMENDMENT OF THE
CONSTITUTION OF THE UNITED STATES. 5
A. Policies and Instruments of Segregation
Existed Prior to B r o w n 1.............................. 5
B. This Court’s Holdings in Brown I and II
Altered The Pattern of State Segregatory
Practices in Public Schools......................... 6
C. Affirmative Acts of Public Authorities
Provided A Segregation Environment for
11
Both School and Residential Location
Decisions....................................... ................... 8
D. State School Officials, in Michigan and
Elsewhere in the Nation, Through Affirm
ative Actions, Not Only Adapted to The
Effects of Demographic Change, But More
Significantly, Determined and Structured
The Course of Metropolitan Development. 10
III. THE SCOPE OF THE CONSTITUTIONALLY
ADEQUATE REMEDY TO SEGREGATED
SCHOOLS IN URBAN AREAS IS NOW
METROPOLITAN. A REMEDY PRESCRIBED
ONLY FOR CENTRAL CITY SCHOOL DIS
TRICTS WOULD CREATE “SEPARATE BUT
EQUAL” SCHOOL SYSTEMS............................ 13
A. The Relevant School Community In The
Nation’s Metropolitan Areas In 1954 Was
the Municipal School District. ................. 14
B. The Relevant School Community For
Purposes of Desegregation Is Now Metro
politan, Not Municipal. ............................... 16
C. Re-segregation Within the Central City
School Districts Is a Symptom of Regional
d e ju r e Segregation....................................... 18
D. The Nature of the Constitutional Violation
in the Instant Case Compels the Affir
mation and Adoption of a Metropolitan
Remedy............................................................. 20 IV.
IV. THERE IS AN INHERENT AND ESSENTIAL
UNITY BETWEEN THE INTEREST OF
CENTRAL CITIES AND THEIR SUBURBAN
iii
TOWNS FORGED BY DOMINANT LONG
TERM FORCES WITHIN THE ECONOMY...... 22
A. Developments in Technology and the
Economy Accelerated Suburban Resi
dential Growth............................................... 24
B. The Increasingly Complex Socio-Economic
Interlock Between City and Suburbs al
tered the Balance Between the Interests
of Individual Communities and Those of
the Larger Metropolitan Region as a
Whole................................................................. 25
C. Metropolitan Community of Interest Was
Legitimized and Made Formal by Private
Citizens and All Levels of Government...... 26
D. The Growth of Metropolitan Areas Has
Been Subverted by Divisive Forces............ 29
CONCLUSION .......................................................................... 30
TABLE OF CONTENTS TO APPENDIX la
APPENDIX ............................................................................................ 2a
i
i
IV
TABLE OF CITATIONS
CASES Page
B r o w n v. B oa rd o f E du ca tion o f T op ek a , 347 U.S. 483;
74 S. Ct. 686; 98 L. Ed. 873 (1954) ............................. 4
B r o w n v. B oa rd o f E d u ca tion o f T op ek a , 349 U.S. 301;
75 S. Ct. 753; 99 L. Ed. 1083 (1955) ........................... 4
G r e e n v. S ch o o l B oa rd o f N e w K e n t C o u n ty , 391 U.S.
430; 88 S. Ct. 1689; 20 L. Ed. 2d 716 (1968) ............. 7
S w a n n v. C h a r lo tte -M e c k le n b u r g B oa rd o f Education,
402 U.S. 1; 91 S. Ct. 1267; 28 L. Ed. 2d 554 (1971) ... 8
K e y e s v. S ch ool D istr ict N o . 1 , D e n v e r , C olora d o, 413
U.S. 189; 93 S. Ct. 2686; 37 L. Ed. 548 (1973) ........... 8
FEDERAL STATUTES
20 USCA 1602 .................................................................. ....... 28
20 USC A 1608
AM ICUS CURIAE AUTHORITY
The City of Hartford, a political subdivision of the State
of Connecticut, is filing this Brief Amicus Curiae sponsored
by its chief law officer, the Corporation Counsel, as duly
authorized by formal vote of the Court of Common Council
of the City of Hartford, pursuant to Rule 42 (4) of the Rules
of the Supreme Court of the United States.
INTEREST OF TH E CITY OF HARTFORD
The City of Hartford, a political subdivision of the State
of Connecticut with a population of 155,000, has a vital, direct
and immediate interest in this case, more particularly as to
the nature and extent of the desegregation remedy this
Court may prescribe. The decision here will have an enduring
and critical effect upon metropolitan areas in this country
and will shape and structure the future relationships be
tween city and suburb, between black and white, between
poverty and wealth.
The District and Appellate Courts have held that the co
terminous boundaries of the city and the school district of
Detroit do not have a racially neutral effect upon school sys
tems in the Detroit metropolitan area; rather, that the exist
ence of said boundaries, coupled with certain affirmative acts
of State school authorities, has caused and continues to cause
and promote racial segregation between schools located in
Detroit and those located in its surrounding suburbs. The
Petitioners argue not only that school district lines in the
Detroit metropolitan area delineate geographically separate
entities, but also, that said districts are legally, socially and
politically unrelated and independent units. Following this
rationale, the Petitioners suggest that the proposal that sub
urban school districts be included in the desegregation plan
was erroneous and contrary to law, and further that a
2
“Detroit only” plan of desegregation is the constitutionally
adequate and the only permissible remedy.
The 27,000 public school students of the City of Hart
ford are confronted with conditions similar to those in
Detroit in that, within the context of school district lines
having been geographically established on a town-by-town
basis, segregation exists to such an extent as to create racially
identifiable schools within the city and between the city and
its surrounding suburbs. In Detroit, however, no systematic
congruence between town and school district is found.
In a suit presently pending in the United States District
Court for the District of Connecticut, instituted by the Mayor
and the members of the Court of Common Council, the City
of Hartford alleges, on behalf of its citizens, that the Connect
icut State Department of Education has created and main
tained racially-identifiable schools and that through its offi
cial policies and administrative actions, has licensed and
sanctioned the containment of minority student concentra
tions in the city proper.
Further, it is alleged that said acts have contributed to
and promoted the white identity of suburban schools, thereby
creating a dual school system which violates the Equal Pro
tection Clause of the Fourteenth Amendment to the United
States Constitution. (C ity o f H a rtfo rd e t al. v. T h om as Mes-
kill, e t al., Civil Action No. 15074, D. Conn. May 30, 1972.)
The Board of Education of the City of Hartford and the
Connecticut State Department of Education are also parties
Defendant in a school desegregation suit instituted in 1970.
( K e n y e t t a L u m p k in , e t al. v. T h om a s M e sk ill , e t al., Civil
Action No. 13,716, D. Conn. Feb. 20, 1970.)
The desegregation remedy determined by this Court will
tangibly and gravely affect the scope of any remedy to be ap-
3
plied in either or both of the pending Hartford cases. The dual
school system existent in the Hartford region is similar to
that in the Detroit region. In both metropolitan areas the sys
tems are constitutionally obstructive and should be dis
mantled, or made permeable on a metropolitan area basis
commensurate with the scope and extent of the harm inflicted
upon their respective public school students.
QUESTION PRESENTED
Is a metropolitan remedy to de ju r e segregation as found
in Detroit constitutionally adequate, appropriate and feasible
under the Equal Protection Clause of the Fourteenth Amend
ment and under the decisions of this Court?
ARGUM ENT
I. INTRODUCTORY BACKGROUND
A. The Structure of Changes in Detroit and Hart
ford fit into a Pattern of Development in the Nation s
Metropolitan Areas.
The involvement of both the Hartford School District and
the Detroit School District in Federal District Court desegre
gation suits is not an adventitious circumstance. To the con
trary, correlative to developments in their respective public
school systems over the past two decades, patterns of economic
and social interdependence have acted to create conditions
within each city which are, today, essentially similar.
In the early 1950’s, the public school population of both
cities was predominantly white-dominated. Each of these
cities was fiscally sound and had no difficulty providing
needed public services for all its citizens; and each continued
to attract new business investment within its municipal
boundaries.
4
By 1970, these conditions had been dramatically re
versed. Detroit and Hartford, like scores of other United
States cities, fit into a national pattern of metropolitan devel
opment which has left the central cities in a state of crisis and
decay. Over the past twenty years, a methodical, pervasive
and continuous depletion of affluent white households from
the central cities, resulting in part from racial segregation in
the schools accompanied by the in-migration of blacks
and low-income households, upset the population balances
needed to maintain the stability and vitality of these urban
communities. This exodus to the suburbs of the economically-
advantaged households and of the business community which
serves them precipitated an erosion of the tax base which,
concurrent with the increased costs of providing needed pub
lic services, contributed greatly to the phenomenon which is
now known as the “Urban Crisis”.1 The forces which shaped
the emerging structure of legal, political and socio-economic
relations are complex and protean and need not be chronicled
here. There is, however, one salient factor which, because of
its importance, merits attention of this Court in its delibera
tions of the instant case.
A major contributory cause of the spiral of urban decay
which has characterized the central cities of this nation in
the intervening years since 1954, has been the concerted,
evasive and illegal policies and administrative actions of state
school authorities to circumvent, subvert, and neutralize this
Court’s mandate as established in the historic decisions, Brown
v. B oa rd o f E d u ca tion o f T op ek a , 347 U.S. 483; 74 S. Ct. 686;
98 L. Ed. 873 (1954); B r o w n v. B oa rd o f E du ca tion o f Topeka,
349 U.S. 301; 75 S. Ct. 753; 99 L. Ed. 1083 (1955).
5
II. STATE SCHOOL AUTHORITIES, FOR THE
STATE OF M ICH IG AN AN D ELSEW H ERE IN TH E
COUNTRY, TH ROUGH AFFIRM ATIVE ACTS, H AVE
FOSTERED, NURTURED, AN D PROM OTED THE
USE OF SCHOOL D ISTRICT ROUNDARY LINES TO
ACCOMPLISH TH E SEGREGATION OF PUBLIC
SCHOOL CH ILDR EN ON THE BASIS OF RACE AN D
ARE, THEREFORE, IN CLEAR VIO LATIO N OF
EQUAL PROTECTION GUARANTEES AS ESTAB
LISHED UNDER TH E FOURTEENTH AM EN D M EN T
OF THE CONSTITUTION OF TH E U N ITED STATES.
A. Policies and Instruments of Segregation
Existed Prior to Brown I
In the historical period previous to 1954, the policy of
segregating and isolating public school children on the basis
of race was usually accomplished w ith in school d istricts. In
some instances, all black districts were operated as separate
administrative units. The instruments for achieving racial
segregation in public schools differed by region of the country.
Southern states were direct and perhaps more forthright in
their discrimination, while Northern states effected racial
segregation of school children by more subtle and hypocritical
means.
In the Southern regions of the country, state systems of
public education, as administered through local school boards,
operated within a context of state laws which explicitly
provided for the separation of races within the confines of
®ch school district. In the North, absent such state laws,
racial segregation within school district boundaries was
achieved by a variety of administrative decrees, by school
6
construction, and by drawing school attendance zones in
conformance with segregated housing patterns.
Since in a growing, mobile society, the housing patterns of
these racially-identifiab-le communities did not remain demo-
graphically stable, an increase in the numbers of children re
siding within existing school attendance zones and shifts in
the geographic distribution of minority housing were accom
modated through two mechanisms which had the effect of
affirming or re-establishing racial segregation within school
districts. Such in crea se in th e n u m b e r s of public school chil
dren within school attendance zones were absorbed through
a policy of allocating funds for the construction and place
ment of new school facilities on the basis of race. In response
to sh ifts in housing patterns which threatened to alter the
racial identity of school attendance zones, local school author
ities adopted a pattern of optional attendance zones, transfer
policies, and the gerrymandering of zones to achieve max
imum racial segregation.
In summary, the pattern of public school segregation
which emerged from the pre-1954 period was one of racially
separate school attendance zones in the North and racially
separate schools in the South. Each system effectively created
racially identifiable schools, thereby yielding a similar result.
B. This Court’s Holdings in Brown I and II Altered
The Pattern of State Segregatory Practices in Public
Schools.
In the years immediately following B r o w n I , the imple
mentation of this Court’s order through the creation of uni
tary, non-discriminatory school systems within certain muni-
7
cipal school districts, did not take place to any substantial de
gree. What token or piecemeal changes did take place were
not sufficient to counteract the effects of increasing numbers
of minority children in the center city and an intensified
racial exclusion of blacks from most suburban areas.
School district lines ceased to function merely for the
purposes of state administrative convenience, but rather as
sumed a new meaning which, with the passage of time, would
come to have broad socio-economic and legal implications.
Already under pressure from demographic changes and,
having been denied the freedom from judicial scrutiny or
constraint which it had historically enjoyed, intra-district
segregation evolved with the growing black population to seg
regation between central city school districts and those of the
suburbs.
While school district boundary lines had historically sep
arated suburban school children from their urban counter
parts prior to 1954, they did not have the effect, nor were
they generally used as a device, to contain and separate mi
nority children from their white school counterparts. With
the increasing threat of the actualization of desegregation
of central city schools, and as administrative devices within
cities failed to keep certain schools white, these legal, poli
tical, and geographic boundaries began to intrude upon
and contribute more substantially to the residential location
decisions of mobile, white families.
Within the period since B r o w n I a n d I I , through its
subsequent decisions, this Court has elaborated, extended and
defined its intent and the methods to be used to eliminate all
vestiges of state-imposed segregation from the public schools.
G r e e n v. S c h o o l B o a r d o f N e w K e n t C o u n t y , 391 U.S.
430; 88 S. Ct. 1689; 20 L. Ed. 2d 716 (1968);
8
Swann v. Charlotte-Mecklenburg Board of Education, 402
U.S. 1; 91 S. Ct. 1267; 28 L. Ed. 2d 554 (1971).
Keyes v. School District No. 1, Denver, Colorado, 413
U.S. 189, 93 S. Ct. 2686; 37 L. Ed. 2d 548, (1973);
It should be borne in mind that, with the erosion of the power
of school attendance zones within school districts to sepa
rate geographically white from minority students, white
families with sufficient income could seek sanctuary
from changing school enrollments by establishing residence in
white suburbs from which blacks were generally excluded.
Just as the scope and extent of school segregation had been de
termined in the Northern states by fixed school attendance
zones within school districts in the pre-1954 period, in the
years following Brown I, the scope and extent of segregation
between school districts throughout the nation was predicated
upon the boundary lines between school districts.
A critical element which, both before and after 1954, con
tributed to and shaped the residential location decisions of
relatively affluent white households was their expectation
that the effects of public racial segregation and private preju
dice and low income would effectively restrict and contain the
residence of black families to the ghetto areas of the central
cities.2
C. Affirmative Acts of Public Authorities Provided
A Segregation Environment for Both School and Residen
tial Location Decision.
The decisions of literally millions of white households
to reside in the suburbs contributed to and shaped the pat
terns of segregation which presently exist between city and
suburban school districts3. The actions of individuals, however,
in their private capacities are not at issue in the instant case.
An important distinction exists beween the right of an indi
vidual to choose his or her place of residence, which is
afforded the protection of the United States Constitution, and
9
actions taken by public officials which have the known and
foreseeable consequence of denying another class of indi
viduals their constitutional rights. Whereas a wide latitude
of permissible behavior is afforded and sanctioned for indi
viduals, the Constitution requires that government officials,
in representing the interests of all people, conform with and
adhere to the highest principles and standards of human con
duct. This precept has been explicitly recognized with res-
spect to the obligations and responsibilities of school officials
in B r o w n v. B o a r d o f E d u c a t i o n o f T o p e k a , 349 U.S. 294;
75 S. Ct. 753; 99 L. Ed. 1083 (1955). II.
During the intervening period from 1954 to the present,
state boards of education in Michigan, Connecticut and else
where in the nation acted under a policy of complicity and
neglect.4 Having failed, p o s t B r o w n , to eliminate school segre
gation in central cities at a time when it was possible to do so,
the official acts of state school authorities had the foreseeable
effect of reinforcing and aggravating existing school and hous
ing segregation. This led directly to a metropolitan community
best described as an expanding core of black schools sur
rounded by a ring of white public schools. Cognizant of the
increasing percentage of minority students within the center
cities, and with full knowledge that classroom construction in
suburban schools was planned for white students, state school
authorities affirmed and permitted school district lines to
function between city and suburbs in the same manner that
school attendance zones had functioned prior to 1954. This
policy of state boards and their local agents cannot, however,
be characterized as one of benign neglect.
State school officials have not merely acted to sanction
and passively condone inter-district segregation; rather, state
boards have fostered, promoted, and actively participated in
the establishment of racially dual systems of public schools
within the metropolitan areas of this nation.
10
The states, therefore, because of their failure to act, are
now faced with the fact that what must be done today will
require student assignment across district boundaries.
D. State School Officials, in Michigan and Elsewhere
in the Nation, Through Affirmative Actions, Not Only
Adapted To The Effects of Demographic Change, But
More Significantly, Determined and Structured The Course
of Metropolitan Development
Since 1950, dramatic demographic changes had to be
planned for, and accommodated by school authorities.
1. Population increased in the nation’s metropolitan
areas by 44.8 million from 1950 to 1970 (47.4%). (See Table
D, Appendix).
2. The population in central cities increased by 10 mil
lion from 1950 to 1970; the major increase taking place in the
earlier decade. (See Table D, Appendix).
3. Suburban population increased over the period 1950
to 1970 by 85.4%; an absolute increase of 34.8 million (from
40.8 to 75.6 million) (See Table D, Appendix).
4. In 1950, 34.6% of the total white population lived
in central cities, but by 1970 the figure had decreased to
27.8%. Net decrease of 2 million. The comparable figures for
the black population registered an increase from 44.1% in
1950 to 58.2% in 1970. (See Table D, Appendix).
5. In 1970, 59.4% of the white population in the metro
politan areas was suburban, while 78% of the black metro
politan residents lived in central cities. (See Table D, Ap
pendix).
6. For the white population in central cities, children
under 13 years old and adults between the ages of 25 and 44
11
years were the major age groups which lost population be
tween 1960 and 1970.5
Selective subsidies to urban and suburban school districts
for the transport of children to and from public schools, varied
planning assistance programs, the discretionary administra
tion of federal education grants, and a variety of other activi
ties constitute affirmative actions by state school authorities
which have shaped and fashioned their respective systems of
education. Paramount among such actions has been state par
ticipation in and responsibility for the construction of new
school facilities to adapt to, accommodate and plan for
changes in the patterns of residence which have character
ized our growing, mobile society.
As this Court has noted, decisions of school officials in
determining the geographic location of new schools will, in
conjunction with school assignment techniques, not only
“determine the racial composition of the student body in
each school in the system” , but will also act to determine and
structure the course of metropolitan development.
“People gravitate toward school facilities, just as schools
are located in response to the needs of people. The loca
tion of schools may thus influence the patterns of resi
dential development of a metropolitan area and have
important impact on composition of inner-city neghbor-
hoods.”
S w a n n v. C h a r l o t t e - M e c k l e n b u r g B o a r d o f E d u c a
t i o n , 402 U.S., ut 20-21; K e y e s v. S c h o o l D i s t r i c t N o .
1 , 413 U.S., at 202.
The Petitioners would have this Court believe that school
districts are separate, unrelated and dissociated from one
another. Far from being unrelated to one another, school
districts in the suburban towns and that of the central city are
12
welded together in a relationship predicated on the racial and
economic prejudice of the affluent white families who leave
cne center city so that their children might attend majority
white schools in the suburbs. The operation and presence of
a minority urban school district, by its very existence, implies
and affirms the existence of its white suburban counterparts
and is thus intrinsic to the patterns of intrametropolitan
migration. As legal and political subdivisions of a greater
whole, each element in this relationship necessarily functions
to separate school children by race. Just as urban implies sub
urban, so their relationship implies a prejudicial result.
Separate school districts, in close geographic proximity
to one another, having been created and maintained through
state action, are elements in and produce the conditions for a
process of state-supported racial segregation which, if allowed
to run its full course, will result in a geographically dual
society, divided by race, in this nation’s metropolitan areas.
This is Darwinism of another sort, wherein income
levels and racial prejudice intertwine to produce the perverse
result which now confronts public officials and private citizens
in Detroit, Hartford and other central cities in the Nation.
The selection process and the socio-cultural advance of one
class of citizens at the expense of another is predicated and
founded, not on biological supremacy, but rather on a malig
nant racism and the income differences which discrimination
has produced. What is all the more reprehensible and ab
horrent is that this selection process is ratified and legitimized
by the policies and administrative actions of state officials.
The result of this process is a metropolitan structure which
divides one sector of society against another and, as such, is
an aberrant form, a mutation, which stands contrary to the
b ourteenth Amendment and to the highest and best interests
of this nation and its citizens.
13
III. THE SCOPE OF THE CONSTITUTION
ALLY ADEQUATE REMEDY TO SEGREGATED
SCHOOLS IS NOW METROPOLITAN. A REMEDY
PRESCRIRED ONLY FOR CENTRAL CITY SCHOOL
DISTRICTS WOULD CREATE “SEPARATE RUT
EQUAL” SCHOOL SYSTEMS.
Two decades ago this Court noted the importance of
education as a function of state and local governments and
ruled that there was no place therein for the doctrine of
“separate but equal.” B r o w n I at 495.
In a recent decision, this Court reiterated that:
“The constant theme and thrust of every holding from
B r o w n I to date is that state enforced separation of races
in public schools is discrimination that violates the Equal
Protection Clause. The remedy commanded was to dis
mantle dual school systems.”
S w a n n , 402 U.S., at 22.
In the difficult problem of practically dismantling dual
school systems, the Federal Courts are faced with two prob
lems. The first is to identify the community of school children,
minority a n d white, who have been harmed by state segre
gative practices; thereby, the Courts define the nature of the
constitutional violation. That is, the Courts must first discern
the geographic and social extent of the pattern of state segre
gation before it can frame an appropriate remedy.
The existence of state-created, racially identifiable schools
implies the segregation of minority students from the domi
nant society which is white. Segregation is a r e l a t i o n , and as
such, the very presence of a separated minority implies and
affirms its opposite — the presence of a majority. In deter
mining the nature of the constitutional violation, it is not
14
enough for the Courts to distinguish those schools which are
racially identifiable on a minority basis, but rather it is
incumbent upon the Courts to determine the extent to which
minorities have been actively separated, through state action,
from their white counterparts within and between school
districts.
Having so defined the community of school children
harmed, the second problem facing the Courts is the framing
of a remedy which would meet the criteria of being both con-
stitutionally-adequate, as well as being “practically flexible”
in its application. This Court has made explicit note, however,
that in the framing of a remedy the overriding consideration
is the constitutional adequacy of any plan of desegregation.
In 1955, when it rendered its decision in B r o w n I I , the
Court recognized that differing fact situations might require
a variety of remedies depending on the relevant school com
munity. This Court expressly noted that to eliminate state-
imposed segregation it might be necessary to change school
district boundaries. In most metropolitan areas, however,
segregation could have been sharply reduced if prompt action
had been taken by limiting it to the central cities. What could
have been done was not done. That is why we are here today.
A. The Relevant School Community In The Nation’s
Metropolitan Areas In 1954 Was the Municipal School
District.
The racial geography of schools in the Topeka region at
the time of the B r o w n decision was congruent with that found
in most metropolitan regions elsewhere in the United States.
In 1954 most of the nation’s metropolitan regions were
characterized by the racial domination of white school child
ren b o t h within the central cities a n d in their traditionally
white suburbs. The implications of this demographic pattern
15
for court-ordered desegregation were far-reaching and ex
tensive.
Although in the subsequent two decades the minority-
concentrations would increase universally within central
cities, in 1954 only certain of the nation’s cities had any
appreciable minority representation. However, in 1954, signi
ficant variation could be found in the degree of concentration
between regions and cities; witness, other selected cities ap
pearing in Table I.
TABLE I M INORITY STATUS IN CENTRAL CITY
SCHOOLS 1 9 5 4
(P E R CENT ENROLLMENT IN SCHOOLS)
A tlan ta 4 3 . 7
B a ltim ore 3 6 . 4
Beaumont 3 3 . 2
B u ffa lo 1 0 . 1
C h a r lo tte 4 0 . 8
Chicago 2 0 . 7
C in c in n a t i 3 0 . 0
C levelan d 2 9 . 1
Dayton 2 1 . 9
D e tro it 2 7 . 2
Gary 3 9 . 4
H a rrisb u rg 2 1 . 3
H artford 1 7 . 1
Memphis 4 2 . 8
N e w a rk 3 1 . 0
New H a v e n 1 5 . 3
New O r le a n s 4 1 . 6
New Y o r k C i t y 1 5 . 2
O a k la n d 2 8 . 0
P h i l a d e l p h i a 3 1 . 2
P i t t s b u r g h 2 1 . 6
R ic h m o n d 4 4 . 1
S t . L o u i s 3 0 . 5
S a n F r a n c i s c o 2 0 . 9
T o p e k a 9 . 6
T r e n t o n 2 5 . 2
W a s h i n g t o n , D .C . 5 7 . 2
W i lm in g t o n 2 7 . 9
Representative selection of cities with high minority population
concentrations chosen from the R e p o r t o f th e C o m m is s io n o n C iv il
Rights and from M e tr o p o l i ta n A r e a S ta tis tic s . The methodology
employed to derive the data for the year 1954 is outlined in
Table II. In interpreting the data, it is necessary to assume a minority
representation in all schools within each school district which
approximates the percentage level of minority students within the
school district as a-whole. S w a n n v. C h a r lo t te -M e c k l e n b u r g B o a r d of Education, 402 U.S. 25.
The data presented in Table I substantiates that, even in
those metropolitan areas which had high concentrations of
Minority school children resident in their central cities, it was
Possible in 1954 to establish unitary non-discriminatory school
districts w i t h i n the central cities.
16
B. The Relevant School Community For Purposes
of Desegregation Is Now Metropolitan, Not Municipal.
Although the relevant school community within which to
dismantle dual school systems was the central school district
in 1954, quite the opposite was true by the end of the decade
of the 1960’s.
The data depicted in Table II, when compared with
Table I, substantiates that, had the courts mandated the
abolition of dual school systems in 1970 solely within existing
central city school districts, the resulting increase in the
number and percent of minority-identified schools would
have produced nothing short of the establishment of a geo
graphically expanded dual system of public schools between
districts in most metropolitan regions.
Over those intervening years from 1954 to 1970, the in
crease in resident white population in central cities subsided
and, from 1960 to 1970, even declined by 600,000. Correlative
decreases in the number of white children attending public
schools in central cities were even greater due to the expanded
enrollment of white children in private schools. In essence,
the numerical and the proportional increase of minority child
ren in central city school systems passed a critical threshhold,
whereby the magnitude of the minority school population in
central cities came to overwhelm the dominant white majority.
The state school boards, having accommodated the i n i t i a l
increases in the number of white children within suburban
school districts, discouraged f u r t h e r in-migration to the central
cities and, in the process, set the parameters within which
took place the s u b s e q u e n t exodus of young families with
children to the suburbs.
Just as state support of dual school systems shifted from
within, to between school districts, so too, the community of
children harmed by state segregative actions also shifted and
17
TABLE 2 M INORITY STATUS IN CENTRAL CITY
SCHOOLS 1 9 5 0 -1 9 7 0
(P E R CENT ENROLLMENT IN SCHOOLS) * 11 12
1
1 9 5 0
2
1 9 5 4 I 9 6 0 3 1970*
Atlanta 4 1 . 1 4 3 . 7 4 3 . 9 6 5 . 7
Baltim ore 2 7 . 2 3 6 . 4 5 0 . 1 6 5 . 7
Beaumont 3 3 . 1 3 3 . 2 3 3 . 3 4 0 . 4
Buffalo 7 . 6 1 0 . 1 2 9 . 4 3 9 . 0
Charlotte 5 3 . 4 4 0 . 8 3 2 . 4 3 3 . 1
Chicago 1 5 . 5 2 0 . 7 2 8 . 5 7 5 3 .8
C in c in a tt i 2 7 . 9 3 0 . 0 3 3 . 1 4 4 . 9
Cleveland 1 8 . 8 2 9 . 1 4 4 . 5 6 0 . 8
Dayton 1 6 . 6 * 2 1 . 9 2 9 . 9 4 3 . 8
Detroit 1 6 . 7 2 7 . 2 4 2 . 9 6 4 . 2
Gary 3 2 . 9 * 3 9 . 4 4 9 . 1 7 3 . 3
H arrisburg 1 5 . 2 * 2 1 . 3 3 0 . 4 2 0 . 3
Hartford 1 5 . 3 1 7 . 1 2 5 . 7 6 4 . 6
Memphis 4 1 . 6 4 2 . 8 4 4 . 5 5 0 . 7
Newark 3 4 . 4 3 1 . 0 5 4 . 2 7 9 .5
New Haven 7 . 9 * 1 5 . 3 2 6 . 3 5 6 . 1
New O rle a n s 3 8 . 4 4 1 . 6 4 6 . 4 6 7 . 3
New Y ork C i t y 1 4 . 7 1 5 . 2 2 1 . 1 ■ 5 3 . 5
Oakland 2 6 . 4 2 8 . 0 3 4 . 5 6 6 . 4
P h ila d e lp h ia 2 0 . 8 3 1 . 2 4 6 . 7 6 1 . 1
Pittsburgh 1 4 . 5 2 1 . 6 3 2 .2 3 8 . 3
Richmond 4 2 . 0 4 4 . 1 4 2 . 0 5 5 . 8
St. L o u is 1 8 . 7 3 0 . 5 4 8 . 3 5 9 . 1
San F r a n c i s c o 1 2 . 9 2 0 . 9 3 2 . 8 4 6 . 4
Topeka 9 . 2 9 . 6 1 0 . 2 1 7 . 4
Trenton 1 5 . 4 * 2 5 . 2 3 9 . 8 7 0 . 5
Washington, D .C . 4 3 . 6 5 7 . 2 7 7 . 5 9 4 . 1
Wilmington 1 8 . 2 * 2 7 . 9 4 2 . 5 7 5 . 8
* A p p ro x im a tio n
Sources: 1 . U .S . B u r e a u o f t h e C e n s u s , U .S . C e n s u s o f P o p u l a t i o n 1 9 5 0 .
V o l . I I , C h a r a c t e r i s t i c s o f t h e P o p u l a t i o n . P a r t s 5 , 7 , 8 , 9 ,
1 1 , 1 3 , 1 4 , 1 6 , 1 8 , 2 0 , 2 2 , 3 0 , 3 2 , 3 3 , 3 5 , 3 8 , 4 2 , 4 3 , 4 5 ,
T a b l e 3 4 , U .S . G o v e rn m e n t P r i n t i n g O f f i c e , W a s h i n g t o n , D . C . , 1 9 5 2 .
2 . S t r a i g h t l i n e i n t e r p o l a t i o n .
3 . U .S . B u r e a u o f t h e C e n s u s , U .S . C e n s u s o f P o p u l a t i o n : 1 9 6 0 .
v ° l " I . C h a r a c t e r i s t i c s o f t h e P o p u l a t i o n . P a r t 6 , 8 , 9 , 1 0 ,
1 2 , 1 5 , 1 6 , 1 8 , 2 0 , 2 2 , 2 4 , 3 2 , 3 4 , 3 5 , 3 7 , 4 0 , 4 4 , 4 5 , 4 7 ,
T a b l e s 7 3 , 7 7 .
U .S . B u r e a u o f t h e C e n s u s f C e n s u s o f P o p u l a t i o n : 1 9 7 0 . G e n e r a l
S o c i a l a n d E c o n o m ic C h a r a c t e r i s t i c s . F i n a l R e p o r t P C ( 1 ) - C , 8 ,
9 , 1 0 , 1 2 , 1 5 , 1 6 , 1 8 , 2 0 , 2 2 , 2 4 , 3 2 , 3 4 , 3 5 , 3 7 , 4 0 , 4 4 , 4 5 ,
4 7 , T a b l e s 8 3 , 9 1 , 9 7 .
4.
18
expanded geographically to include white suburban school
children.
C. Re-segregation Within the Central City School
Districts Is a Symptom of Regional De Jure Segregation.
In formulating a remedy in the instant case, involving a
community of children in the Detroit region, the District
Court and the Sixth Circuit Court of Appeals confronted the
same two basic issues which this Court adjudicated in
B r o w n I a n d I I . The first issue, that of defining the nature of
the constitutional violation, calls upon the courts to ascertain
the geographic and social extent of state-imposed segregation
of white from minority children. Because d e j u r e segregation
is a dual relation which effects a separation of white from
minority as well as minority from white, the critical dis
tinction for the courts in defining the community of children
harmed, both minority and white, is not the quantitative
enumeration of the visible minority which have been segre
gated from the surrounding white society. To the contrary,
the issue is to distinguish and separate the surrounding white
society into two parts — (1) that part of the white majority
circumscribed by the d e j u r e actions and policies of the state
and (2) that exurban sector of the white majority which is
segregated d e f a c t o from the suburban white and the urban
minority. More specifically, the problem the Courts have to
resolve is the identification and separation of those particular
white-dominated schools influenced by state action and which,
therefore, fit into the total pattern of d e j u r e segretation.
With the nature of the constitutional violation defined,
the second major issue, that of practical implementation,
admits of no easy solution. The process of dismantling dual
school systems has been complicated, and in some cases
thwarted entirely, by the shifts which have taken place in the
racial composition of those neighborhoods and schools affected
19
by court orders. This problem has nowhere been more severe
than in the central city school districts. This Court, in S w a n n ,
has acknowledged the difficulties associated with attempts
to establish unitary school systems:
“This process has been rendered more difficult by changes
since 1954 in the structure and patterns of communities,
the growth of student population, movement of families,
and other changes, some of which had marked impact on
school planning, sometimes neutralizing or negating
remedial action before it was fully implemented.”
S w a n n , 402 U.S., at 14.
In this era of “ evolving remedies” subsequent to B r o w n ,
the courts often p r e c i p i t a t e demographic change through the
implementation of a remedy which is bounded within too
narrow a geographic area. By not embracing the entire region
in which the process of segregation has taken place when
establishing unitary school systems, the courts run the risk of
increasing the long-run minority concentrations in court-
affected areas through a process of resegregation. The “white
flight” to the suburbs which acts as a parameter and facili
tates resegregation within the central cities is, however,
founded upon a larger underlying pattern of d e j u r e segre
gation.
A rapid transition of a school district from majority-white
status to a preponderance of minority students, such as that
which has taken place in Detroit ( See Tables I and II), implies
a relation between minority and majority which traverses and
extends beyond the school district boundaries. The racial
displacement of white with minority students within a central
city school district would not be possible were it not for the
receptive environment created within contiguous suburban
towns which absorb white out-migration. It is only because of
the relative attractiveness created in the suburbs, coupled
with prejudice, that individual household decisions to relocate
20
can combine to produce a total pattern of racial segregation
which is regional.
Such a pattern of out-migration is contingent upon four
factors which support the white exodus and which, obversely,
contain minority households in the central cities: (1) the
higher income levels of white households; (2) the freedom of
social mobility within the larger society; (3) the geographic
proximity of suburb to city to the extent that traveling time
and distance from the new location allows the out-migrant
household to maintain employment and social contacts within
the region, and (4) the existence of new residential and school
construction in the suburbs. The salient and essential charac
teristics common to the out-migrants is that they remain
constituents of the regional economy and society.
D. The Nature of the Constitutional Violation in the
Instant Case Compels the Affirmation and Adoption of a
Metropolitan Remedy.
In order to delineate a pattern of d e j u r e segregation
which is regional, it is necessary to specify state policies and
administrative actions which have separated the whites who
have out-migrated from the minorities remaining in the
central cities. Both the record herein and the data in Tables
I and II indicate that the collective effect of individual
location decisions has been to structure the economic and
social geography of the City of Detroit and its surrounding
region. The record, then, reveals a pattern of regional segre
gation which has two distinct aspects: (1) effective segrega
tion has taken place within the school system of the City of
Detroit, and (2) segregation has increased and continues to
increase between the school system of the City of Detroit
and that of its surrounding suburbs.
The State of Michigan, through its local agent, the Detroit
School Board, has admitted and the Courts have found that,
21
d e j u r e segregation existed within the School District of
Detroit. The State, having admitted to only one aspect of the
regional pattern of d e j u r e segregation, does not thereby limit
the extent of its responsibility for creating inter-district
segregation in the Detroit region.
Over the years since B r o w n , the School Board of the State
of Michigan and its local agents have undertaken a massive
school construction program, the segregative consequences
of which were known and foreseeable. Over the period from
1954 to the present, well over 400,000 students have been
accommodated in suburban school districts in the Detroit
region6. And from 1967 to the present, the school Boards
in the Detroit region have reported the racial compo
sition of their student body both to the federal government
and to the Michigan State Board of Education7. In light
of these facts, the complicity and active participation of
the School Board of the State of Michigan, in determining the
pattern of segregation within and between districts, cannot
be ignored or denied. The Petitioner’s contention, therefore,
that the nature of the constitutional violation is defined
to ,within, and contained and restricted* segregative acts of
school authorities within the school district of Detroit, is
transparent and tenuous and should be discarded as being
without basis in fact or in law.
The Respondents reasoned, to the contrary, that in
light of the high and increasing concentrations of minority
children in Detroit’s schools, the pattern of d e j u r e segregation
extended to white schools in the suburban townships and,
therefore, required a metropolitan remedy to assure the
establishment of a unitary school system. At each step of
the progress of the instant case the courts found in favor
of the Respondents and took steps toward the implementation
of an inter-district remedy.
22
Essentially the courts found a pattern of state education
in the metropolitan area which was one of an expanding core
of black schools with a ring of white suburban schools. Again,
the blackness of the schools is directly related to the whiteness
of other schools in the area. The courts simply examined the
entire area affected by the remedy in light of the S w a n n
limitation of “ time and distance” . No governmental structure
has been upset. Rather, state authorities have suggested, and
Respondents agreed, that pupils and staff could be exchanged
by contract (a not unfamiliar governmental arrangement).
The question of redrawing districts when necessary has been
left, just as in reapportionment cases, with the State Legis
lature.
The central and critical issue here is that of student
assignment. In arguments in the record, and in those put
forth by the City of Hartford herein, it has been amply
shown that the nature of the constitutional violation is
regional and is in no way contained solely within the school
district of Detroit. Therefore, this Court can do no other than
uphold and affirm the finding of the Sixth Circuit Court of
Appeals that, in dismantling the dual school system, a
metropolitan remedy is constitutionally required. To do other
wise, and to order a “Detroit-only” solution as has been argued
by the Petitioners, would re-instate, re-establish, and give
sanction to a “ separate but equal” system of schools in the
Detroit region.
IV. THERE IS AN INHERENT AND ESSENTIAL
UNITY BETWEEN THE INTEREST OF CENTRAL
CITIES AND THEIR SUBURRAN TOWNS FORGED
BY DOMINANT LONG TERM FORCES WITHIN THE
ECONOMY.
The structure of metropolitan areas has been formed by
a myriad of factors among which the technologies of modern
production and distribution are probably most significant.
23
Prior to the turn of the century, reliance on horse and
rail transportation, on telegraph and messenger service, on
multi-storied manufactories, and on small-scale retail outlets
combined to contain and circumscribe the limits within which
urban economic activity could efficiently function. Early pro
duction technologies were simple, requiring only a modicum
of land and capital. As new technologies were developed and
integrated, more and larger units of capital were required,
and as a result, the suburbs became relatively more attractive
than the city for the location of new manufacturing activity.
The advent of high rise office buildings simultaneously trans
formed the profile and character of the city.
America entered the 20th century with an industrial
economy which attracted even more activity and greater
numbers of people to its already flourishing central cities. In
the South, Midwest and West these industrial and residen
tial increases were accommodated through the creation and
rebuilding of entire cities; e.g., Atlanta, Phoenix and Los
Angeles. As manufacturing activity continued its growth,
these cities faced the identical space constraints endemic to
the older, Northern urban areas. The density of industrial
activity within all cities reached critical levels and spilled
over existing city boundaries. Suburbs became the necessary
adjuncts to the industrial activity situated within the cities
of metropolitan areas throughout the nation.
This new structural balance in metropolitan areas al
tered the functional relationship between city and suburb. As
new manufacturing enterprises were accommodated in the
land-rich suburbs, central cities expanded their role as the
regional base for corporate headquarters, financial institu
tions and the various other professional services required in
the movement of goods from their point of production to their
final destination. The re-allocation of economic activity be
tween city and suburb was accompanied by greater economic
24
efficiency and higher levels of productivity. A synergistic
effect was created wherein producers, although locationally
discrete and physically removed from all others, became in
creasingly interdependent in order to meet the needs of
regional residents and the demands of national and inter
national markets.
The hegemony of the central city declined as the level of
regionwide economic activity increased. These changes were
reflected by a shift in regional commutation patterns and a
marked increase in the degree of interaction b e t w e e n city and
suburb. Town lines in the metropolitan complex were being
traversed not only by suburban commuters working in the
central city, but by city residents as well, seeking the employ
ment opportunities offered within the suburban ring.
A. Developments in Technology and the Economy
Accelerated Suburban Residential Growth.
While technological changes were transforming the spa
tial allocation of production activities, a metamorphosis in
the pattern of residential land use was taking place as well.
Prior to the turn of this century, American society was an
amalgam of rural and urban places. The suburbs had not yet
developed to significant proportions and, consequently, the
majority of metropolitan area residents lived and worked in
the central city. Technological developments in the early part
of the century, however, soon altered this pattern. The ubiq
uity of the private automobile, telephone, and television en
abled individuals to five at increasingly distant locations from
their places of employment, recreation, and shopping, while
continuing to interact with the central city. The inexpensive
land in rural and suburban areas, coupled with easily obtained
mortgages, and the rising income levels generated by the
increasingly productive metropolitan economy, allowed fam
ilies to enjoy less crowded living quarters than those available
to urban residents.
25
In the post World War I period, the accelerating demand
for low-density residential housing quickly outstripped the
available supply of land within the city boundaries. During
this period of expansion, the ability of the city to annex con
tiguous residential areas was precluded by the existence of
political boundaries. Where boundaries did not previously ex
ist, the new suburban expansion necessitated their creation.
In other cases, existing rural towns near the city were simply
engulfed by residential development. The result was an eco
nomically integrated metropolitan region fragmented by a
variety of jurisdictional lines.
B. The Increasingly Complex Socio-Economic In
terlock Between City and Suburbs Altered the Balance
Between the Interests of Individual Communities and
Those of the Larger Metropolitan Region as a Whole.
In the early period of suburbanization, the suburban
towns were distinct communities, each with its own particular
flavor and, as a group, decidely different in structure and
function from the central city. The undeveloped open spaces
and the strictly residential character of most of these towns
created a life style altogether different from that of their ur
ban counterparts. Their governmental structures were
simpler, their finances less complicated, and their problems
primarily local community issues easily resolved with active
participation by all interested parties. During this formative
period, while each unit of the metropolitan community evol
ved and extended its own local identity, the central city re
mained the nexus of all intercommunity activity — economic
political, social, cultural and educational — and thus em
braced and represented the metropolitan identity.
As the technological shifts and economic exigencies gave
impetus to the urbanization of the suburbs, the residents of
the suburban towns and their representative governments
26
were confronted with the problems of resolving the multi
faceted issues arising from the existence of large industrial
and commercial establishments within their jurisdictions. The
regional interlock of these large firms, resulting from their
employment of workers and their purchase of supplies from
firms in other metropolitan towns, as well as their use of ser
vices located in the central city, forced a shift in the scope of
local decision-making away from local autonomy and towards
regionalism.
C. Metropolitan Community of Interest Was Legit
imized and Made Formal by Private Citizens and All
Levels of Government.
As the city and its suburbs evolved into an economically
integrated region, narrowly defined parochial interests could
no longer dominate the thinking of community leaders. The
shift towards metropolitanism, as above described, was a
result of increasing regional interlock and growing similari
ties in the economic and social structure of city and suburb.
This growing community of interest has manifested itself in
the increasing number of co-operative agreements entered
into by both the representative bodies and administrative
agencies of these municipalities and by private citizens alike.
The following are examples of the institutionalization of the
regional community of interest (See Appendix III).
LOCAL:
1. The municipal governments of suburbs and cities
have created numerous authorities to provide public ser
vices on a regionwide basis in such areas as planning,
public health, public safety, mass transit, water and
sewer systems, as well as in special educational services;
and
2. Private citizens of these communities have set
up co-operative agencies to meet the diverse needs of
27
regional residents. Chambers of commerce, councils of
churches, centers for the treatment of drug abuse and
alcoholism, and sundry other business and social service
organizations are examples of these private and non
profit co-operative institutions.
Parallel to these changes, officials at state and federal
levels have recognized the community of interest between
city and suburb by assigning regional bodies the responsibility
for carrying out, and the authority for overseeing, the ad
ministration of a variety of State and Federal programs.
STATE:
1. The creation of state administrative districts with
in regions in order to facilitate governmental functions
adheres to the i n t r i n s i c u n i t y of city and suburb. Judicial
districts, environmental regions, welfare districts, police
units, tax districts, and civil defense areas are exemplary
of these administrative districts.
2. State-approved and funded regional planning
agencies, which exist in every state in the nation, are
assigned the responsibility for coordinating growth and
for providing public planning services within their
jurisdictions.
FEDERAL:
1. The central city and its surrounding region, be
cause they are viewed as an important socio-economic
unit, constitute the main focus of much of the statistical
activity of the federal government. The two major geo
graphical loci of information-gathering are the Standard
Metropolitan Statistical Area of the Bureau of the Census
and the Labor Market Area of the Bureau of Labor
Statistics, both of which are defined on the basis of
28
interaction between central city and its contiguous area.
Standard Metropolitan Statistical Area is defined by
the Bureau of Census as containing one or more central
cities with a combined population of at least 50,000
inhabitants, and with contiguous towns in “ the region
which are socially and economically integrated with the
central city.” 8
2. Metropolitan regions, because they have evolved
to the point wherein they are functionally unified, are
eligible for, and are prime targets of, federal funds for
economic development. Most outstanding among these
are the HUD 701 Comprehensive Planning Grants,
Economic Development Agency Grants and Manpower
Administration Training Funds.
Not only has the Federal government recognized the
economic and social community of interest between city and
suburb through numerous economic development grants, but
it has also explicitly acknowledged the metropolitan di
mension of the racial isolation of central city school children.
The 92nd Congress of the United States appropriated sub
stantial public funds under Title VII of the Educational
Amendments of 1972 for the purpose of “ dealing with con
ditions of segregation by race in the schools of local education
al agencies of any State without regard to the origin or cause
of such desegregation” (20 U.S.C.A. § 1602). Provision has
been expressly made for the joint development, by a group of
local educational agencies located in a Standard Metropolitan
Statistical Area, “ of a plan to reduce and eliminate minority
group isolation, to the maximum extent possible, in the public
elementary and secondary schools in the SMSA.” (20 U.S.C.A.
§ 1608).
29
D. The Growth Of Metropolitan Areas Has Been
Subverted By Divisive Forces.
During this century, the cities and suburbs in the nation’s
metropolitan areas have experienced an unprecedented eco
nomic growth predominantly influenced and shaped by the
forces of a new technology. The essential unity between the
interests of central cities and their suburban towns has been
forged by these salutary economic trends.
Since 1954, however, an ominous and antagonistic social
force, has surfaced to disrupt and stifle the heretofore pre
vailing forces of a progressive economy. This unsettling force
is, significantly, the pattern of population shifts caused by the
effects of school segregation and school district lines on res
idential location. The complicity of state school authorities
in giving shape to this antagonistic force is amply recited
above.
The balance between city and suburb has been adversely
affected by the accelerated out-migration of white families
and economic activity in the post B r o w n I era. The combined
cumulative effect of the location decisions of people and
business have led to rising social and economic costs both in
the suburbs and the city. The sprawling overdevelopment of
the suburbs stands in contrast to the disinvestment, poverty
and virtual bankruptcy of urban governments engulfing the
cities in an inexorable spiral of decay.
It is noteworthy, however, that what began as a mere
disruptive influence has now come to threaten and subvert
the equilibrium and unity between city and suburb to the
point where it will corrode and blight the body politic of our
metropolitan areas.
30
CONCLUSION
In light of the foregoing, we respectfully urge this Court
to affirm the decision of the e n b a n c Sixth Circuit Court of
Appeals as the only sound, feasible and effective course to
meet the controlling standards established by B r o w n I a n d I I .
The nature and scope of the remedy are defined by the nature
and scope of the injury. It is impossible, in any meaningful
sense, to desegregate a racially homogeneous, large core-city
school district such as Detroit or Hartford, T h e e m p i r i c a l
r e a l i t i e s c o m p e l a r e g i o n a l r e m e d y t o r e d r e s s a n e s s e n t i a l l y
r e g i o n a l h a r m t o b o t h w h i t e a n d n o n w h i t e s t u d e n t s .
The insular course advanced by the Petitioners is not a
proper judicial corrective. A “Detroit-only” remedy cures
nothing. It contravenes the B r o w n mandate by invidiously
polarizing the races. Indeed, it well exacerbates and accentu
ates the proscribed dual system by resegregation. Above all,
it ineluctably portends a 100% minority “ unitary” Detroit
school district.
If such narrow remedy were adopted and followed, it
would dilute, if not nullify, the great desegregation principals
enunciated by this Court since 1954. It would revive the
discredited “ separate but equal” doctrine and, ironically,
recreate and re-establish within our core-cities the very sepa
rate and u n e q u a l system of public education long outlawed
by this Court. In short, the intra-district remedy represents a
regression to the dead doctrines and rigid provincialism of the
of the Nineteenth Century. If the federal courts are restricted
in providing an adequate remedy for a federal wrong by
virtue of state law, we will have returned not to the Consti
tution but to the Articles of Confederation.
We ask this Court to fashion an i n t e r - d i s t r i c t plan of
student assignment wholly consistent with the existing spec
trum of federal, state and local laws prescribing and approving
31
governmental policies and programs on a regional basis.
Having encouraged and reaped the gains of regional growth
and development, the State and its suburban surrogates cannot
tenably claim that school districts are unrelated and inde
pendent of one another. Such facile rationalization cannot be
used to circumvent their clear responsibilities to eliminate
racial discrimination in public education. It ill behooves those
who have profited from the new regionalism to repudiate the
city — the source of their profits — by suggesting that the
city look to itself for its own remedy. It is indefensible that
Petitioners now assume a righteous posture, insensitive to the
segregated plight and loss of the urban and suburban school
child — a plight and loss which they helped to create and
sustain.
The public school children of the metropolitan Detroit
and Hartford regions, of whatever race or circumstance, must
i n f a c t be guaranteed the equal educational opportunity to
know and achieve the society of their peers and, in turn, the
respect for and understanding of themselves and others. Thus,
will their legal rights be seemed, their human dignity be
maintained, and the true meaning and purpose of the Equal
Protection Clause of the Fourteenth Amendment be fullfilled.
Thus, can this Court alone, in its commanding power and
wisdom, secure such rights, maintain such human dignity and
fullfill such meaning and purpose of the Constitution of the
United States.
Respectfully submitted,
Al e x a n d e r A. G oldfarb
Corporation Counsel
for the
City of Hartford
550 Main Street
February 1, 1974 Hartford, Connecticut
I
la
TABLE OF CONTENTS TO APPENDIX
Page
I. NOTES TO T E X T .............................................................. 2a
II. STATISTICAL TABLES
A Racial Census-Hartford Public Schools,
1965 to 1972 .................................................................. 6a
B Racial Segregation in Hartford Public
Schools, 1965-1972......................................................... 7a
C Minority Population In Central Cities
(1950-1970) .................................................................. 8a
D National Population Trends For Metropolitan
Areas, 1950-1970 .......................................................... 9a
E Income Characteristics In 1969 And 1959
Of Families By Sex And Race Of Head
And Metropolitan Residence: 1970 And 1960 ........ 10a
F Distribution Of Persons Below The Poverty
Level In 1969 And 1959 By Race And
Metropolitan Residence: 1970 And 1960 .............. 11a
G Employment In All SMSA’S And Central
Cities, 1958 and 1967 .................................................. 12a
III. HARTFORD REGION AS AN EXAMPLE OF
COMMUNITY INTERLOCK WITHIN A
METROPOLITAN REGION............................................. 13a IV.
IV. FOOTNOTES TO APPENDIX 19a
2a
NOTES TO TEXT
“As a resu lt of the population shifts of the post-w ar period
concentra ting the m ore affluen t p a rts of the u rb an population in
residen tia l suburbs w hile leav ing the less affluen t in the central
cities, the increasing b u rden of m unicipal taxes frequen tly falls
upon th a t p a r t of the u rb an popu la tion least ab le to pay them.
Increasing concentrations of u rb an grow th have called forth
g rea te r expend itu res fo r every k ind of public service education
health , police protection , fire p rotection , parks, sewage disposal,’
sanitation , w a te r supply, etc. These expend itu res have strikingly
outpaced tax revenues.”
Report of the National A dvisory Commission on Civil Dis
orders, C hairm an O tto K ern er (1968) p. 393
at J 'Thci centra l. cities, p a rticu la rly those located in th e industrial
N ortheast and M idwest, a re in the th roes of a deepening fiscal cri
sis. On th e one hand, they are confronted w ith the need to satisfy
rap id ly grow ing expend itu re requ irem en ts triggered by the rising
num ber of h igh cost” citizens. On the o ther hand, th e ir tax re
sources a re increasing a t a decreasing ra te (and in some cases
ac tua lly declining), a reflection of the exodus of m iddle and high
incom e fam ilies and business firms from th e cen tra l city to sub
u rb ia .”
A dvisory Commission on Intergovernm ental Relations, “ Urban
and Rural A m erica: Policies for Future G row th” , A-32, p. 26
The incom e d isparity betw een cen tra l city and suburban fam
ilies has increased during the p as t decade. In 1959, the m edian fam
ily incom e fo r cen tra l city fam ilies ($7,420) w as abou t $930 less
th an th a t fo r suburban fam ilies ($8,350). By 1969, about $1,850
separated the m edian fam ily incom es fo r these tw o groups ($9 160
and $ n , 000, respectively ). The m edian incom e of cen tral city
I n?n ieK decreased from 89 p ercen t of th a t of suburban families in
1959 to abou t 83 p ercen t in 1969.”
tt'oo Bureau of the Census, Current Population Reports, Series
P-23, No. 37, “ Social and Economic Characteristics of the Pop
ulation in Metropolitan and Nonmetropolitan A reas: 1970 and
1960” , P (23) No. 37, p. 2.
2 .
The num ber of N egroes resid ing in suburban rings has in-
creased by abou t 1.1 m illion persons during the decade. However,
the proportion of the m etropo litan Negro population living in sub
u rb an rings has n o t increased significantly betw een 1960 and 1970,
rem ain ing a t abou t one fifth. N egroes com prised only about 5 per
cen t of th e suburban population in 1970.”
Ibid, p. 2.
1 .
Thousands of Negro fam ilies have a tta ined incomes, living
standards, and cu ltu ra l levels m atching or surpassing those of
w hites who have “upg raded” them selves from d istinctly ethnic
neighborhoods. Y et m ost N egro fam ilies have rem ained w ithin pre-
a® 1,1? , ^ Negro neighborhoods, p rim arily because they have been
effectively excluded from w hite residen tia l areas.”
Report of the National A dvisory Commission on Civil Disorders,
C hairm an Otto K erner, (1968) a t 244.
Negro fam ilies continue to have incom es fa r below those for
w hite fam ilies. In 1969, the m edian incom e fo r Negro families in
m etropo litan areas w as $6,840 com pared to $10,650 for the ir coun-
3a
terparts. The com parable figures fo r 1959 w ere $4,770 and $8,200,
respectively. Even though the ra tio of N egro to w hite fam ily in
come increased from 58 percen t in 1959 to abou t 64 percen t in 1969,
the dollar difference betw een th e ir respective m edians has increased
from $3,430 in 1959 to 3,810 in 1969.”
17.S. Bureau of the Census, Current Population Reports, Series
P-23, No. 37, “ Social and Economic Characteristics of the Pop
ulation in Metropolitan and Nonmetropolitan A reas: 1970 and
1960” , P (2 3 ) No. 37, p. 2.
“W hile th e proportion of th e to ta l m etropo litan population liv
ing in cen tra l cities decreased during the p as t decade, to a po in t
where the m ajo rity (56 percen t) of m etropo litan residen ts now live
in suburban areas, th e m etropo litan poverty population has r e
mained concentra ted in cen tra l cities. A bout five-eighths of the
metropolitan poor lived in cen tra l cities in bo th 1959 and 1969.
“The poverty ra tes fo r bo th w hite and Negro persons have de
creased in a ll residence categories betw een 1959 and 1969. H ow
ever, the poverty ra tes fo r Negroes continue to be significantly
higher than those for w hite persons. In m etropo litan areas, the pov
erty ra te fo r w hite persons w as abou t 7 percen t com pared to 24
percent fo r N egroes in 1969. O utside m etropo litan areas, the poverty
rate for w hites was abou t 14 percen t, w hile abou t ha lf of Negroes
were poor. In cen tra l cities, abou t one in ten w hite persons was poor,
in 1969, as com pared to one in fou r fo r Negroes. In suburban areas,
the poverty ra te fo r w hites w as abou t 5 percen t, w hile th e ra te for
Negroes w as no t significantly d ifferen t from th a t in cen tra l cities.”
Ibid, p. 7.
“In la rg e p a rt, th e separation of rac ia l and economic groups
between cities and suburbs is a ttr ib u tab le to housing policies and
practices. The practices of p riv a te industry — builders, lenders,
and real estate b rokers — often have been key factors in excluding
the poor and the nonw hite from the suburbs and confining them to
central cities. P ractices of the p riva te housing industry have been
rigidly d iscrim inatory , and the housing it has p roduced — large ly
in the suburbs — has been a t a p rice th a t only the re la tive ly afflu
ent can afford.”
U.S. Commission on Civil Rights, A Report: Racial Isolation in
the Public Schools, (1967) p. 20.
“P riva te industry is n o t alone responsible, how ever, fo r the
growth of v irtu a lly all-w hite, m iddle-class suburbs surrounding the
urban poor. G overnm ent a t a ll levels has contribu ted to th e pattern .
“In addition, the au tho rity of local governm ent to decide on
building perm its, bu ild ing inspection standards, and th e location of
sewer and w ate r facilities, has som etim es been used to discourage
private bu ilders who otherw ise w ould be w illing to provide housing
on a nondiserim inatory basis.”
Ibid, p. 21.
3.
“The rich v a rie ty of the N ation’s u rb an population is being
separated into d istinct groups, liv ing increasingly in isolation from
each other. In m etropo litan areas th e re is a grow ing separation
between the poor and th e affluent, betw een the w ell educated and
the poorly educated, betw een N egroes and w hites. The racial, eco
nomic, and social stratification of cities and suburbs is reflected in
similar stratification in city and subu rban school d istric ts.”
Ibid, p. 17.
4a
“Thus th e re is a p a ra lle l betw een population and school enroll
m en t trends w ith in m etropo litan areas. In bo th cases, Negro pop
u la tion increases a re alm ost en tire ly absorbed in the cen tra l cities.
In bo th cases, the iso lation of N egroes in residen tia l ghettos and
Negro schools is growing. The N ation’s C apital — W ashington, D.C.
— already has a m ajority-N egro population . O ther cities are expe
riencing rap id increases in N egro population. C ity school enroll
m ents m ore sharp ly reflect th e trend . A substan tia l num ber of cities
have e lem en tary school en ro llm en ts th a t a lready a re m ore than
h a lf Negro. In these cities, a t least, the problem s of rac ia l isolation
in th e schools can no longer fu lly be m et in the con tex t of the city
alone.”
Ibid, p. 13.
“T he causes of rac ia l isolation in city schools a re com plex and
the iso lation is se lf-perpetuating . In the N ation’s m etropo litan areas,
it rests upon the social, economic, and rac ia l separation between
cen tra l cities and suburbs. In la rge p a r t th is is a consequence of the
d iscrim inato ry practices of th e housing industry and of S tate and
local governm ents.”
Ibid, p. 70.
4.
“A lthough residen tia l p a tte rn s and nonpublic school enrollment
m the N ation’s cities a re key fac to rs underly ing rac ia l concentrations
m city schools, th e policies and practices a re seldom neu tra l in
effect. They e ith e r reduce or rein fo rce rac ia l concentrations in the
schools.”
U.S. Commission on Civil Rights, A Report: Racial Isolation in
the Public Schools, (1967) p. 39.
“A lthough purposefu l school segregation resu lting from legal
com pulsion o r adm in istra tive action is no t often found now in the
N orth, ap p a ren tly n eu tra l decisions by school officials frequently
have h ad th e effect of re in fo rcing the rac ia l separation of students,
even w here a lte rn a tiv es w ere availab le w hich w ould not have had
th a t re su lt.”
Ibid, p. 44.
5.
“W hile the m a jo rity of bo th the w hite and Negro populations
resided in m etropo litan areas in 1970 (64 p ercen t and 71 percent,
respec tive ly ), they exhib ited w idely d iffe ren t residence patterns.
The w hite m etropo litan population w as large ly suburban (60 per
cen t) , w hile th e ir Negro coun terparts w ere p rim arily residents of
cen tra l cities (78 percen t). The w hite population in central cities
has, in fact, decreased by about 2.6 m illion during the past decade.
F or the w hite population in cen tra l cities, ch ild ren under 13 years
old and adu lts betw een the ages of 25 and 44 years w ere the major
age groups w hich lost population betw een 1960 and 1970 (Table 1).
U.S. Bureau of the Census, Current Population Reports, Series
P-23, No. 37, “ Social and Economic Characteristics of the Pop
ulation in Metropolitan A reas.” 1970 and 1960,” 1971 p. 2.
6.
U.S. B ureau of the Census, U.S. Census of Population , 1950, Vol. II.
C haracteristics of the Population , P a r t 22, Tables 34, 42. U.S. Bureau
of the Census, Census of P opu lation : 1970. G eneral Social and
Econom ic C haracteristics, F ina l R eport P C (1 ) 24, Tables 83, 120.
7.
R eport R equired by T itle VI of the Civil R ights A ct of 1964 and by
T itle IX of the E ducation A m endm ents of 1972. Section 80.6(b) of
HEW Regulations (45 CFR 80) issued to carry out the purposes of
Title VI of Civil Rights Act (20 USCA § 1609; 42 USCA 2000 (d).
8.
U.S. B ureau of th e Census, Census of P opu lation : 1970 General
Social and Economic Characteristics, F in a l R eport P C (1 )-C 8 Con
necticut. P age App.-4.
6a
TABLE A RACIAL CENSUS - HARTFORD PUBLIC SCHOOLS
An E ig h t -Y e a r Comparison
(19 6 5 -1 9 7 2 ) o f M inority -
S tu d en ts*
SCHOOL 1965 1966 1967 1968 1969 1970 1971 1972
A rs e n a l
0505 .3 99 .4 99 .5 99..4 99..2 99,.7 99.4 99.4
Barbour 96 .2 95..7 97 .0 95 .6 97..0 97,.5 97.1 99.4
Barnard/Brown 98 .0 98 .5 98 .8 99..3 99..5 99,.6 99.0 99.5
B a tc h e ld e r 6 .2 6,.2 8 .2 14..7 15..0 13,.6 21.2 24.2
B ra ck e t t NE 95 .5 96..5 96 .6 96..6 98..7 99,.2 - - --
Burns 5 .5 8,.2 12 .0 15,.3 22..0 24..4 26 .1 38.6
Burr 2 .0 3,.3 2 .5 7,.9 12..6 17..5 18.6 29.6
C lark 99 .2 99..7 99 .8 100..0 100..0 99..7 99.3 99.5
Dwight 11..2 12..5 12 .3 14..6 26.,8 26..3 23.9 26.3
F is h e r 46,.4 52..1 59 .7 68..0 77.,3 85..5 88.9 92.3
Fox 2..2 6..3 14 .0 19..9 22.,4 26..7 32.3 41.5
Hooker 47..0 52..4 57 .7 62..0 70.,7 77.,9 83.3 87.4
Jones 87..9 92. 7 93 .7 94..3 96.,9 96..0 98.5 98.6
K en n e l ly -■ .5 .4 4..6 3.,8 6..2 10.3 13.7
K i n s e l l a 45..0 48..2 58..7 62..0 76.,2 83..4 87.2 88.8
Moylan/McDonough 18..9 21..0 23 .5 32..1 39..9 44,,2 45.2 53.3
N aylor 2..5 4,.3 4..8 9..3 7.,0 7..7 9.8 8.7
New Park 13..4 15. 7 12..4 15..8 22.,7 21.,6 18.8 18.5
Raws on 44..9 54..3 61..6 70..3 84.,2 90.,5 90.3 91.1
Twain 35.,7 45.,0 51..6 58.,0 69.,7 80.,7 85.7 99.7
Vine 95..1 97.,4 97..5 98.,6 99..2 98.,7 98.3 90.4
Wave r l y / S imp s on -- - - -• - - 99.,7 99.2 99.4
W ebster ,8 ,9 2,.3 7,,9 8. 3 10.,9 13.9 21.6
West M iddle 44..1 53..1 59,.3 65. .5 70. 0 76.,7 78.4 82.7
Wish 96..4 97.,2 97..8 97.,5 98.,5 99.,0 98.7 99.4
Fox M iddle _ _ . . 97.2 97.1
Quirk M iddle -- - - 81.3 72.0
B u lk e le y High 2..6 3. 0 2..6 5 .,5 9. 2 15. 6 21.3 22.2
HPHS 45. 0 44.,1 4 5 .,4 50.,2 54. 4 59.,2 61.9 66.0
HPHS Annex 43..8 61. 1 63..7 68.,2 75. 8 67. 1 57.7 77.5
Weaver 55.,4 60.,7 69..3 79.,8 88. 2 95. 9 97.5 98.0
* % M in o r i t y f i g u r e s f o r s tu d e n ts d e r iv e d from a d d i t i o n
o f B lack and P u erto R ican .
Source: Hartford Board of Education, Research Department,
A Seven -Y ear Comparison o f the E th n ic D is t r ib u t io n
o f P u p i l s by S c h o o ls 1 9 6 5 -1 9 7 1 , 1966-1972
7a
TABLE B RACIAL SEGREGATION IN
HARTFORD PUBLIC SCHOOLS
WHITE M INORITY INTEGRATED
SCHOOLS SCHOOLS SCHOOLS
S t u d e n t s S t u d e n t s S t u d e n t s
// E n r o l l e d // E n r o l l e d # E n r o l l e d
1 9 6 5 12 9 4 1 3 9 8 4 3 5 7 8 2 6 3
1 9 6 6 12 8 7 2 7 9 1 0 5 1 9 7 6 7 7 0
1 9 6 7 12 8 8 4 6 11 1 1 5 8 4 5 6 5 3 4
1 9 6 8 12 9 1 6 9 12 1 4 9 6 5 3 3 4 0 9
1 9 6 9 11 8 2 6 5 15 1 5 6 5 1 2 4 6 3 3
1 9 7 0 10 8 3 5 8 17 1 5 6 4 8 2 4 5 0 4
1 9 7 1 10 8 3 0 5 18 1 8 9 1 7 2 1 4 1 0
1 9 7 2 9 6 4 9 9 19 1 9 5 2 5 2 1 9 2 5
S o u r c e : H a r t f o r d B o a r d o f E d u c a t i o n , R e s e a r c h
D e p a r t m e n t , " A S e v e n Y e a r C o m p a r is o n
o f t h e E t h n i c D i s t r i b u t i o n o f P u p i l s
b y S c h o o l s . " 1 9 6 5 - 1 9 7 1 , 1 9 6 6 -1 9 7 2
8a
TABLE C M INORITY POPULATION IN CENTRAL C IT IE S
1 9 5 0 1
1 9 5 0 - 1 9 7 0
(P E R CENT)
1 9 5 4 * 2 1 9 6 0 3 4 197$
A t l a n t a 3 6 . 6 3 7 . 3 3 8 . 3 52,3
B a l t i m o r e 2 4 . 0 2 8 . 4 3 5 . 0 ,47 ,3
B e a u m o n t 2 8 . 7 2 8 . 9 2 9 . 3 33.6
B u f f a l o 6 . 5 9 . 4 1 3 . 8 21.2
C h a r l o t t e 2 8 . 0 2 8 . 0 2 8 . 0 30.9
C h ic a g o 1 3 . 6 1 7 . 3 2 2 . 9 40.0
C i n c i n n a t i 1 5 . 5 1 7 . 9 2 1 . 6 28.2
C l e v e l a n d 1 6 . 0 2 1 . 2 2 9 . 0 40.1
D a y t o n 1 4 . 0 1 7 . 1 2 1 . 8 31.0
D e t r o i t 1 6 . 4 2 1 . 5 2 9 . 2 45.5
G a ry 2 9 . 3 3 3 . 1 3 8 . 8 61.1
H a r r i s b u r g 1 1 . 3 1 4 . 7 1 9 . 7 31.2
H a r t f o r d 7 . 1 1 0 . 4 1 5 . 3 35.5
M em phis 3 7 . 0 3 7 . 0 3 7 . 0 39.4
N ew ark 1 7 . 2 2 4 . 1 3 4 . 4 61.4
New H a v e n 6 . 8 9 . 9 1 4 . 6 29.8
New O r l e a n s 3 2 . 0 3 4 . 0 3 7 . 0 49.5
New Y o r k C i t y 9 . 8 1 1 . 8 1 4 . 7 31.4
O a k la n d 1 4 . 5 1 9 . 3 2 6 . 4 44.3
P h i l a d e l p h i a 1 8 . 0 2 1 . 2 2 6 . 0 35,0
P i t t s b u r g h 1 2 . 2 1 4 . 0 1 6 . 8 20.3
R ich m o n d 3 2 . 0 3 6 . 0 4 2 . 0 42.7
S t . L o u i s 1 8 . 0 2 2 . 4 2 8 . 8 41.8
S a n F r a n c i s c o 5 . 6 7 . 4 1 0 . 1 27.6
T o p e k a 8 . 0 7 . 8 7 . 7 13.0
T r e n t o n 1 1 . 3 1 5 . 8 2 2 . 5 40.3
W a s h i n g t o n , D .C . 3 5 . 0 4 2 . 6 5 4 . 8 73.1
W i lm in g t o n 1 5 . 6 1 9 . 8 2 6 . 2 45.8
* A p p r o x im a t i o n
S o u r c e s : 1 . U .S . B u r e a u o f t h e C e n s u s , U .S . C e n s u a o f P o p u la t i o n 1950.
V o l . I I , C h a r a c t e r i s t i c s o f t h e P o p u l a t i o n . P a r t s 5 , 7 , 8, 9,
1 1 , 1 3 , 1 4 , 1 6 , 1 8 , 2 0 , 2 2 , 3 0 , 3 2 , 3 3 , 3 5 , 3 8 , 4 2 , 43 , 45,
T a b l e s 3 3 , 6 2 , U .S . G o v e rn m e n t P r i n t i n g O f f i c e , W ashington,
D . C . , 1 9 5 2 .
2 . S t r a i g h t l i n e i n t e r p o l a t i o n .
3 . U .S . B u r e a u o f t h e C e n s u s , U .S . C e n s u s o f P o p u l a t i o n : I960.
V o l . I , C h a r a c t e r i s t i c s o f t h e P o p u l a t i o n . P a r t 6 , 8 , 9 , 10>
1 2 , 1 5 , 1 6 , 1 8 , 2 0 , 2 2 , 2 4 , 3 2 , 3 4 , 3 5 , 3 7 , 4 0 , 4 4 , 4 5 , 47,
T a b l e 2 1 .
4 . U .S . B u r e a u o f t h e C e n s u s , C e n s u s o f P o p u l a t i o n : 197 0 . JSgllSt&i
S o c i a l a n d E c o n o m ic C h a r a c t e r i s t i c s , F i n a l R e p o r t PC(1)-C> >
9 , 1 0 , 1 2 , 1 5 , 1 6 , 1 8 , 2 0 , 2 2 , 2 4 , 3 2 , 3 4 , 3 5 , 3 7 , 4 0 , 4 4 , 45,
4 7 , T a b l e s 8 1 , 9 1 , 96
9 a
TABLE D NATIONAL POPULATION TRENDS FOR
METROPOLITAN AREAS - 1950-1970
TOTAL POPULATION
(1 ,0 0 0 ,0 0 0 )
% Change
1950 1960 1970 1950-1970
Total P o p u la t io n 1 5 1 .3 1 7 9 .3 2 03 .2 34 .3
SMSA 9 4 .6 1 19 .6 1 3 9 .4 4 7 .4 '
Central C i t y 5 3 .8 6 0 .0 6 3 .8 18 .6
Remainder 4 0 .8 5 9 .6 75 .6 8 5 .4
WHITE POPULATION
(1 ,0 0 0 ,0 0 0 )
°L Change
1950 1960 1970 1950-1970
Total P o p u la t io n 1 3 5 .2 1 5 8 .8 1 77 .6 3 1 .4
SMSA 8 5 .1 1 0 5 .2 1 2 0 .4 4 1 .5
Central C ity 4 6 .8 4 9 .4 4 8 .8 4 .3
Remainder 3 8 .3 5 5 .7 71 .6 8 7 .0
BLACK POPULATION
( 1 ,0 0 0 ,0 0 0 )
°L Change
1950 1960 1970 1950-1970
otal P op u la t ion 1 5 .0 1 8 .8 22 .7 5 1 .4
SMSA 8 .9 1 2 .7 1 6 .8 8 9 .7
Central C ity 6 .6 9 .9 1 3 .1 9 8 .2
Remainder 2 .2 2 .8 3 .7 6 4 .5
U. S. Bureau o f the Census, S t a t i s t i c a l
A b s t r a c t o f The U nited S t a t e s , 1 971 .
T ab le 14
Source:
1 0 a
t a b l e E INCOME CHARACTERISTICS IN 1 9 6 9 AND
1 9 5 9 OF FAM ILIES BY SEX AND RACE
OF HEAD AND METROPOLITAN RESIDENCE:
1 9 7 0 AND 1 9 6 0
( I n 1 9 6 9 d o l l a r s . N um ber
o f f a m i l i e s i n t h o u s a n d s )
1 9 6 9 _____________________________________ 1 9 5 9
M e t r o p o l i t a n a r e a s M e t r o p o l i t a n a r e a s
I n c o m e
c h a r a c t e r i s t i c s
I n s i d e
c e n t r a l
c i t i e s
O u t s i d e
c e n t r a l
c i t i e s
I n s i d e
c e n t r a l
c i t i e s
O u ts id e
c e n t r a l
c i t i e s
ALL RACES
A l l f a m i l i e s 1 4 , 7 0 4 1 8 , 4 4 6 1 4 , 7 1 5 1 3 ,8 6 9
M e d ia n in c o m e 9 , 1 5 7 1 1 , 0 0 3 7 , 4 1 7 8 ,3 5 1
M ean in c o m e 1 0 , 4 5 0 1 2 , 3 4 8 8 , 6 3 4 9 ,8 0 6
F a m i l i e s w i t h m a le
h e a d 1 2 , 4 3 4 1 6 , 8 8 9 1 2 , 9 2 0 1 2 ,9 3 3
M e d ia n in c o m e 9 , 9 1 7 1 1 , 4 3 3 7 , 7 9 0 8 ,5 6 1
M ean in c o m e 1 1 , 2 5 4 1 2 , 8 6 3 9 ,0 7 9 1 0 ,1 0 9
F a m i l i e s w i t h
f e m a l e h e a d 2 , 2 7 0 1 , 5 5 7 1 , 7 9 5 936
M e d ia n in c o m e 4 , 9 0 8 5 , 8 2 4 4 , 1 7 7 4 ,5 9 0
M ean in c o m e 6 , 0 4 1 6 , 7 7 1 5 , 4 3 0 5 ,6 2 0
WHITE
A l l f a m i l i e s 1 1 ,7 5 9 1 7 , 5 7 6 1 2 , 4 4 7 1 3 ,3 1 7
M e d ia n in c o m e 9 , 7 9 7 1 1 , 1 5 5 7 , 8 8 1 8 ,4 8 6
M ean in c o m e 1 1 ,1 2 4 1 2 , 5 1 6 9 , 1 7 2 9 ,9 8 8
NEGRO
A l l f a m i l i e s 2 , 7 4 0 7 2 6 2 , 1 2 6 480
M e d ia n in c o m e 6 , 7 9 4 6 , 9 8 6 4 , 8 4 0 4 ,3 8 3
M ean in c o m e 7 ,5 7 5 8 , 2 9 1 5 , 3 9 9 5 ,0 7 7
NEGRO AS A PER
CENT OF WHITE
M e d ia n in c o m e 6 9 . 3 6 2 . 6 6 1 . 4 5 1 .6
M ean in c o m e 6 8 .1 6 6 .2 5 8 . 9 50 .8
S o u r c e : U .S . B u r e a u o f t h e C e n s u s , C u r r e n t P o p u l a t i o n R e p o r t s , , S e r ie s
P - 2 3 , N o . 3 7 , " S o c i a l a n d E c o n o m ic C h a r a c t e r i s t i c s o f th e
P o p u l a t i o n i n M e t r o p o l i t a n a n d N o n m e t r o p o l i t a n A r e a s : 1 97 0 an<*
1 9 6 0 , " T a b l e B , U .S . G o v e rn m e n t P r i n t i n g O f f i c e , W a s h in g t o n ,
1 9 7 1 .
1 1 a
TABLE F DISTRIBUTION OF PERSONS BELOW THE
POVERTY LEVEL IN 1969 AND 1959 BY
RACE AND METROPOLITAN RESIDENCE:
1970 AND 1960
1969 1959
Race and r e s id e n c e
Person s P e r ce n t Persons P e r ce n t
below below below below
p o v e r t y p o v e r t y p o v e r t y p o v e r ty
l e v e l l e v e l l e v e l l e v e l
ALL RACES
United S t a t e s . . thousands 24 ,280 1 2 .1 38,766 2 2 .0
Percent 1 0 0 .0 (X) 1 0 0 .0 (X)
Metropolitan areas 5 0 .7 9 .5 4 3 .9 1 5 .3
Inside c e n t r a l c i t i e s 3 2 .0 1 3 .4 2 6 .9 1 8 .3
Outside c e n t r a l c i t i e s 1 8 .8 6 .3 1 7 .0 1 2 .2
WHITE
United S t a t e s . . thousands 16 ,661 9 .5 28 ,336 1 8 .1
Percent 1 0 0 .0 (X) 1 0 0 .0 (X)
Metropolitan areas 4 9 .2 7 .3 4 1 .7 1 2 .0
Inside c e n t r a l c i t i e s 2 7 .2 1 0 .2 2 3 .0 1 3 .8
Outside c e n t r a l c i t i e s 22 .0 5 .4 1 8 .7 1 0 .4
NEGRO
United S t a t e s . . thousands 7 ,213 3 2 .3 9 ,9 27 5 5 .1
Percent 1 0 0 .0 (X) 1 00 .0 (X)
Metropolitan a re a s 5 3 .4 2 4 .4 5 0 .4 4 2 .8
Inside c e n t r a l c i t i e s 4 2 .5 24 .7 3 8 .4 4 0 .8
Outside c e n t r a l c i t i e s 1 0 .9 2 3 .2 1 1 .9 50 .9
(X) Not a p p l i c a b l e .
Source:
U.S. Bureau o f the Census, C u rrent P o p u la t io n R e p o r t s ,
S e r i e s P -2 3 , No. 37 ' 'S o c i a l and Economic C h a r a c te r
i s t i c s o f the P o p u la t i o n in M e t r o p o l i t a n and Non
m e t r o p o l i t a n A r e a s : 1970 and 1 9 6 0 , " T a b le D, U .S.
G o v ' t P r i n t i n g O f f i c e , W ash ington , D.C. 1971
1 2 a
TABLE G EMPLOYMENT IN -A L L S M SA 'S AND
CENTRAL C IT IE S
(In m i l l i o n s )
M a n u - R e t a i l W h o l e s a l e S e l e c t e d
f a c t u r i n g T r a d e T r a d e S e r v i c e s
1 9 6 7 1 9 5 8 1 9 6 7 1 9 5 8 1 9 6 7 1 9 5 8 1 9 6 7 1958
UNITED STATES 1 9 . 3 1 6 . 0 9 . 6 7 . 8 3 . 6 2 . 8 3 .9 2 .9
S t a n d a r d m e t r o p o l i t a n
s t a t i s t i c a l a r e a s * 1 4 . 2 1 2 . 2 7 . 0 5 . 6 3 . 0 2 . 3 3 . 2 2 .3
C e n t r a l c i t i e s 7 . 8 7 . 3 4 . 1 3 . 8 2 . 0 1 . 8 * 2 . 2 1 .8
O u t s i d e c e n t r a l
c i t i e s * 6 . 5 4 . 9 2 . 9 1 . 8 1 . 0 0 . 5 * 1 . 0 0 .6
C e n t r a l C i t y a s
P e r c e n t o f SMSA 5 4 . 5 5 9 . 9 5 8 . 7 6 7 . 9 6 7 . 1 7 7 .9 6 9 . 7 7 6 .3
PER CENT OF UNITED STATES TOTAL
UNITED STATES 1 0 0 .0 1 0 0 .0 1 0 0 .0 1 0 0 .0 1 0 0 .0 1 0 0 .0 1 0 0 .0 1 0 0 .0
S t a n d a r d m e t r o p o l i -
t a n s t a t i s t i c a l
a r e a s 7 3 . 6 7 6 . 0 7 3 . 3 7 2 . 6 8 3 . 1 8 3 . 4 8 2 . 8 8 0 .6
C e n t r a l c i t i e s 4 0 . 1 4 5 . 3 4 3 . 0 4 9 . 3 5 5 . 8 6 5 . 0 5 7 . 7 6 1 .6
O u t s i d e c e n t r a l
c i t i e s 3 3 . 5 3 0 . 6 3 0 . 3 2 3 . 3 2 7 . 3 1 8 . 5 2 5 . 0 1 9 .1
PERCENTAGE CHANGE BETWEEN YEARS
1 9 5 8 - ■ 1 9 6 7 1 9 5 8 - 1 9 6 7 1 9 5 8 - 1 9 6 7 1 9 5 8 - 1967
UNITED STATES 2 0 . 6 2 3 . 5 2 8 . 6 3 3 .6
S t a n d a r d m e t r o p o l i t a n
s t a t i s t i c a l a r e a s 1 7 . 0 2 4 . 7 2 8 . 1 3 7 .2
C e n t r a l c i t i e s 6 . 8 7 . 7 1 0 . 5 2 5 .3
O u t s i d e c e n t r a l c i t i e s 3 2 . 0 6 0 . 6 9 0 . 2 7 5 .3
* R o u n d in g i s b a s e d o n m i d p o i n t o f r a n g e s sh o w n i n t a b l e 1 - 1 t o a v o id
d i s c l o s i n g f i g u r e s o f i n d i v i d u a l c o m p a n i e s .
S o u r c e : U .S . B u r e a u o f t h e C e n s u s , S p e c i a l E c o n o m ic R e p o r t s , Employment.
.A nd P o p u l a t i o n C h a n g e s - S t a n d a r d M e t r o p o l i t a n S t a t i s t i c a l Areas
A nd C e n t r a l C i t i e s . S e r i e s E S 2 0 ( 7 2 ) - 1 , Sum m ary T a b le 1 , U .S .
G o v e r n m e n t P r i n t i n g O f f i c e , W a s h i n g t o n , D . C . , 1 9 7 2 .
13a
HARTFORD REGION AS AN EXAMPLE OF COMMUNITY
INTERLOCK WITHIN A METROPOLITAN REGION.
I. FUNCTIONAL ADMINISTRATION R E F L E C T S
UNDERLYING REGIONAL COMMUNITY OF INTER
EST OF GOVERNMENTAL UNITS.
A. The Federal Government Recognizes The Metro
politan Entity
1. Department of Commerce — Hartford SMS A
and SEA
2. Department of Labor — Hartford LMA,
CAMPS
3. Department of Justice — LEAA grant for Crim
inal Justice Planning
4. Department of Housing and Urban Affairs —
701 Regional Planning Grants
5. Department of Health, Education and Welfare
— Comprehensive Health Planning Region
B. Connecticut State Administrative Areas Have A
Regional Focus
1. Human Rights 10. Interregional
and Opportunities Planning
2. Services for 11. Judicial
Elderly Persons 12. Labor
3. Parks and Forests 13. Civil Defense
4. Consumer Protection 14. Criminal
5. Finance and Control 15. Real Estate
6. Health 16. Safety
7. Mental Health 17. State Police
8. Development 18. Tax
9. Highway 19. Transportation
14a
C. Local Government Recognition of the Regional
Community of Interest
1. Greater Hartford Council of Governments
2. Capitol Region Library Council
3. Community Renewal Team of Greater
Hartford
4. Greater Hartford Flood Commission
5. Metropolitan District Commission
6. Greater Hartford Transit District
II. BUSINESS AND INDUSTRIAL INTERACTION IS
BASED UPON THE REGIONAL COMMUNITY OF
INTEREST.
A. Hartford Is An Important Employment Center for
Workers Throughout The Region*
1. Of the total employment in the 9 towns 53%
work in Hartford1
2. Of the total manufacturing employment in the
9 towns, 58% work in Hartford2
B. Sales Patterns Demonstrate the Regional Depen
dence Upon Hartford
1. 36% of all retail sales of the 9 towns are in
Hartford3
2. 55% of all wholesale trade in 6 towns (all avail
able information) in Hartford4
C. 71% Of The Manufacturing Firms Relocated Be
tween 1962-1971 Chose to Remain Within the
Region?
* Hartford, Bloomfield, East Hartford, Glastonbury, Newington, South
Windsor, West Hartford, Wethersfield, Windsor.
15a
D. The Suburban Towns Require the Financial Facil
ities of the City — 75% of the Banking Facilities
in the 8 Towns are Hartford-based Banks6
E. Many Business and Industrial Groups Recognize
the Need For a Regional Organization
1. The Greater Hartford Chamber of Commerce
2. Manufacturing Association of Hartford County
3. Greater Hartford Small Business Corporation,
Inc.
III. MANY NON-PROFIT, PUBLIC, AND PRIVATE
SERVICES ARE PROVIDED FOR THE ENTIRE
REGION.
A. Certain Public Welfare Activities Serve the Metro
politan Area 1 2 3 4 5
1. Capitol Region Crime Squad organized for
Drug and cooperative action
2. Hartford County Fire Line
3. Public Housing — 76% of 9 towns is in Hart
ford7
4. District Offices for all social services located in
Hartford
5. Hartford is the emergency drug center of region
B. Many Social Service Agencies Serve All 9 Towns
1. Community Renewal Team of Greater Hartford
a. Neighborhood Youth Corps
b. Programs for the Elderly
2. Greater Hartford Community Council
a. Coordination of all Social Service agencies
b. Research and information center for those
needing help
16a
3. Greater Hartford Council of Churches
4. Greater Hartford Council on Alcoholism
and Drugs
5. Greater Hartford Assoc, for Retarded Children
6. Capitol Region Mental Health Planning
Commission
7. Capitol Region Health Planning Council
C. Regional Interaction is Reflected in the Use of
Health Care Facilities
1. Hospital use — 80% of the hospital patients
from the 8 towns use Hartford’s Hospital
facilities8
2. Nursing Homes and extended care facilities —
figures show a tremendous amount of inter
action between the 9 towns in the provision of
these services
3. Birth and Death — 84% of all births to 8 towns
residents and 50% of all 8 towns deaths took
place in Hartford9
D. The Whole Region Depends Upon the Tax-Exempt
Properties Located in Hartford 1
1. 52% of all tax-exempt properties of the region
are in Hartford10
2. 100% of the correctional tax-exempt properties
of the region are in Hartford”
3. 75% of the Armories are in Hartford12
4. 66% of the Health facilities are in Hartford13
5. 65% of tax-exempt administrative properties
are in Hartford14
6. 52% of the charitable properties are in
Hartford15
17a
7. 43% of the educational properties are in
Hartford16
E. Professional Services Are Most Efficiently Provided
From the Center of the Region
1. 70% of all lawyers have offices in Hartford17
2. 50% of all accountants have offices in Hartford18
3. 60% of all physicians have offices in Hartford19
IV. P U B L I C UTILITIES, COMMUNICATION A N D
TRANSPORTATION FACILITIES REFLECT A COM
MUNITY OF INTEREST.
A. Utilities Are Provided on a Metropolitan Basis
1. Entire area served by the same Electric
Company
2. All 9 towns are served by the same Gas Com
pany (Ct. Natural Gas)
3. All 9 towns are either members or use the
MDC water and sewerage facilities
B. Telephone and Telegraph Services Are Regionally
Based
1. The 9 towns form a single free dialing area and
are served by a single phone book
2. Hartford is the central dispatch office for all
Western Union in-coming materials
C. The Suburban Communities Subscribe to Hartford
Newspapers 1
1. Hartford Courant — Hartford 14%; 8 towns
30%20
2. Hartford Times — Hartford 29%; 8 towns 4Q%21
18a
D. The Nine-Town Region Comprises the Primary
Listening Audience for Local Television and Radio
Broadcasting Stations
E. The Locus of the Regional Transportation Network
is the Central City
1. Greater Hartford Transit District
2. Hartford is the heart of the regional highway
system
3. Hartford is the regional terminal for rail and
bus transportation
V. AREA TOWNS UTILIZE REGIONAL CULTURAL
AND EDUCATIONAL FACILITIES.
A. Cultural Activities Attract A Regional Audience
1. Four times as many suburban residents main
tain regular memberships in Hartford’s Bush-
nell Memorial Auditorium as city residents22
2. Suburban residents comprise over 50% of the
membership of Wadsworth Atheneum located
in Hartford23
B. Certain Educational Facilities and Organizations
Reflect the Regional Community of Interest 1
1. 21% of the enrollment in Hartford State Tech
nical College from 8 towns24
2. 42% of the enrollment in Greater H artford Com
munity College from 8 towns25
3. 27 out of 37 Institutions of Higher Learning in
the 9 towns are in Hartford26
4. Greater Hartford Consortium on Higher
Education
19a
5. Greater Hartford Council on Economic
Education
6. Capitol Region Education Council
a. Cooperative Purchasing Program
b. Special Programs for Disabled Children
Agreements
c. 13 other cooperative programs to improve
and share educational knowledge
FOOTNOTES TO APPENDIX
'Connecticut L abor D epartm ent, E m ploym ent Security Division,
Monthly Bulletin (D ecem ber 1967, 1968, 1972; N ovem ber, 1970).
2U.S. B ureau of the Census, Census o f Manufacturers ( Connecticut)
(1958, 1963, 1967), T able 4.
Connecticut D epartm en t of Com m erce, C onnecticut D evelopm ent
Commission, M arket Data 1972-1973, p. 60.
4U.S. Bureau of the Census, Census of Business W holesale Trade
Statistics (Connecticut) (1967), T able 4 and 7.
^Connecticut L abor D epartm ent, N ew Manufacturing Firms (1962-
1971)
^Banking Commission of the S ta te of Connecticut, A nnual R eport
for 1972.
Connecticut S tate Tax D epartm ent, T ax Com m issioner of R eal
Estate, Q uadrennial S ta tem en t of R eal E sta te E xem pted F rom
Taxation (1970).
Connecticut H ea lth D epartm ent, D ivision of H ospital and M edical
Care, Survey (1972).
9State of Connecticut, D epartm en t of V ita l S tatistics.
City of H artford , D epartm en t of V ita l S tatistics.
'°State Tax D epartm ent, loc. cit.
"Ibid.
,2Ibid.
mid.
mid.
mid.
mid.
"Survey of H artfo rd Telephone D irectory Y ellow Pages.
mid.
mid.
20The Hartford Courant, C irculation Records.
21 The Hartford Times, C irculation Records.
22Bushnell M em orial A uditorium , M em bership records (1973).
23Wadsworth A theneum , M em bership R ecords (1972).
24Hartford S tate Technical College, A dm ission R ecords (1973).
25Greater H artfo rd Com m unity College, Adm issions Records (1973).
^State D epartm ent of Education, Com mission fo r H igher Education,
higher Education In Connecticut, 1973-1974
2 0 a
I n a c c o r d a n c e w i t h a R e s o l u t i o n a d o p t e d b y t h e C o u r t o f
C o m m o n C o u n c i l o f t h e C i t y o f H a r t f o r d o n D e c e m b e r 1 0 ,
1 9 7 3 , t h e O f f i c e o f t h e C o r p o r a t i o n C o u n s e l w a s d u l y a u t h o r
i z e d t o t a k e a l l s t e p s n e c e s s a r y t o p r e p a r e a n d s u b m i t a B r i e f
A m i c u s C u r i a e t o D o c k e t N o s . 7 3 - 4 3 4 , 7 3 - 4 3 5 a n d 7 3 - 4 3 6 o f
t h e U n i t e d S t a t e s S u p r e m e C o u r t , O c t o b e r T e r m , 1 9 7 3 .
P u r s u a n t t h e r e t o , T h o m a s K . S t a n d i s h , A s s i s t a n t P r o
f e s s o r o f E c o n o m i c s a t t h e U n i v e r s i t y o f H a r t f o r d , i n h i s
c a p a c i t y a s t h e c i t y ’ s e c o n o m i c c o n s u l t a n t , w i t h h i s r e s e a r c h
s t a f f , R o n a W i l e n s k y , P a t r i c i a P l o u r d e a n d S t e v e n M . G r e e n
b e r g , a s s i s t e d i n p r o v i d i n g t h e s o c i o - e c o n o m i c a n a l y s i s a n d
s t a t i s t i c a l s u p p o r t f o r t h e a r g u m e n t s c o n t a i n e d h e r e i n . P u b l i c
f u n d s o f t h e C i t y o f H a r t f o r d w e r e a u t h o r i z e d a n d a p p r o p r i
a t e d t h e r e f o r .
In T he
Supreme Court of the United States
October Term, 1973
No. 73-434
WILLIAM G. MILLIKEN, et al.,
vs.
RONALD G. BRADLEY, et al.,
Petitioners,
Respondents,
No. 73-435
ALLEN PARK PUBLIC SCHOOLS, et al.,
Petitioners,vs.
RONALD G. BRADLEY, et al.,
Respondents,
No. 73-436
THE GROSSE POINTE PUBLIC SCHOOL SYSTEM,
Petitioner,
vs.
RONALD G. BRADLEY, et al.
Respondents.
On Appeal from the United States Court of
Appeals for the Sixth Circuit
MOTION FOR LEAVE TO FILE BRIEF
AS AMICI CURIAE IN SUPPORT
OF PETITIONERS
AND
BRIEF OF AMICI CURIAE
IN SUPPORT OF PETITIONERS
(C ounsel listed on inside cover)
F R E D W . F R E E M A N ,
C H A R L E S T . H A R R IS and
D IC K IN S O N , W R IG H T , M cK E A N
& C U D L IP
O f C ou n sel f o r B lo o m fie ld Hills
S c h o o l D istrict
K E L L E R , T H O M A , M cM A N U S ,
T O P PIN & S C H W A R Z E
O f C ou n sel f o r B irm ingham Public
Sch ools, N orth ville Public
S ch o ols and S ou th ga te
C o m m u n ity S ch o ols
D E L L , S H A N T Z , B O O K E R &
SH U L T E
O f C ou n sel f o r Clarenceville
S c h o o l D istrict, S o u th R e d fo r d
S ch ools and W est B lo o m fie ld
S c h o ol D istrict
R A Y M O N D G . G L IM E and
M A T H E R , G L IM E & D A O U S T
O f C ou n sel f o r C lintondale
C o m m u n ity S ch ools
S E M P L IN E R , T H O M A S & G U T H
O f C ou n sel f o r P lym o u th
C o m m u n ity S c h o o l D istr ict o f
W ayn e and W ashtenaw C ou n ties
C H A R L E S F . C L IP P E R T
1 7 0 0 N o rth W o o d w a rd Avenue
P .O . B o x 509
B lo o m fie ld H ills, M ichigan 48013
C ou n sel f o r B lo o m fie ld Hills
S c h o o l D istr ict
C H A R L E S E . K E L L E R
T H O M A S H. S C H W A R Z E
Suite 1 6 0 0 — P e n o b s co t Building
D e tro it , M ich igan 4 8 2 2 6
C ou n sel f o r B irm ingham Public
S ch ools, N orth ville Public
S c h o o ls and S ou th gate
C o m m u n ity S ch o ols
JO H N F . S H A N T Z
2 2 2 W ash in gton Square Building
R o y a l O ak , M ich igan 48 067
C ou n sel f o r Clarenceville School
D istrict, S o u th R e d fo rd
S c h o ols and W est Bloom field
S c h o o l D istr ic t
R A Y M O N D M cP E T E R S
4 0 3 M a co m b D a ily Building
M ou n t C lem en s, M ichigan 48043
C ou n sel f o r L ’A n s e Creuse
Public S ch o ols
W A L T E R J. G U T H , JR .
711 W est A n n A r b o r Trail
P ly m o u th , M ich igan 4 8 1 7 0
C ou n sel f o r P lym o u th Community
S c h o o l D istr ict o f W ayne and
W ashtenaw C ou n ties
T O N Y F E R R IS
158 Cass A ven u e
M ou n t C lem en s, M ichigan 48043
C ou n sel f o r Van D y k e Public
S c h o ols
P E R R Y C H R IS T Y
O n e Parklane B ou levard
D ea rb orn , M ich igan 4 8 1 2 6
C ou n sel f o r W estw o o d
C o m m u n ity S c h o o l District
I n T he
Supreme Court of the United States
O c to b er T er m , 1973
No. 73-434
WILLIAM G. MILLIKEN, et al.,
vs.
RONALD G. BRADLEY, et al.,
Petitioners,
Respondents,
No. 73-435
ALLEN PARK PUBLIC SCHOOLS, et al.,
Petitioners,
RONALD G. BRADLEY, et al.,
Respondents,
No. 73-436
THE GROSSE POINTE PUBLIC SCHOOL SYSTEM,
vs. Petitioner,
RONALD G. BRADLEY, et al.
Respondents.
O n A ppea l fro m th e U n ited S ta tes C o u r t o f
A ppeals f o r the Six th C ir c u it
MOTION FOR LEAVE TO FILE BRIEF
AS AMICI CURIAE IN SUPPORT
OF PETITIONERS
The undersigned school districts respectfully move for leave
to file the attached brief as amici curiae in this cause. The consent
o f the attorneys for plaintiffs Ronald G. Bradley, et al., state
defendants, and defendants Allen Park Public Schools, et al,
Grosse Pointe Public School System, Royal Oak Public Schools!
School District o f the City o f Detroit, Southfield Public School!
and Professional Personnel o f Van Dyke has been obtained. The
consent o f the attorneys for defendants Kerry Green, et al,,
Detroit Federation o f Teachers Local 231, American Federation
o f Teachers, AFL-CIO, and Denise Magdowski, et al., was re
quested but no response has been received from the attorneys for
said defendants.
The undersigned school districts are located in Macomb,
Oakland, Washtenaw and Wayne Counties in southeastern
Michigan. Their interests in this case arise out o f the possibility
that the District Court will order metropolitanization of their
Public schools. None o f the undersigned school districts was a
party to the proceedings below or to the appeal taken therefrom,
although all o f them were recently joined as defendants by Order
o f the District Court dated September 10, 1973, subsequent to
remand from the Court o f Appeals.
The undersigned school districts believe that the attached
brief deals with questions o f law that may not adequately be dis
cussed in the briefs to be filed by the parties to the appeal. In
particular, they believe that the parties will not adequately deal
with the failure of the Courts below to assure that the proceedings
on remand will accord due process to the undersigned school dis
tricts by vacating all rulings affecting them. Furthermore, because
the briefs o f parties in the Court o f Appeals did not discuss at
length the question o f the appropriateness o f the trial forum, the
undersigned school districts believe that the attached brief will
contain a more complete argument on the issue o f the necessity of
convening a three-judge court.
Respectfully submitted,
F R E D W . F R E E M A N ,
C H A R L E S T . H A R R IS and
D IC K IN S O N , W R IG H T , M cK E A N
C H A R L E S F . C L IP P E R T
1 7 0 0 N orth W ood w a rd Avenue
P .O . B o x 50 9
B lo o m fie ld H ills, M ichigan 48013& C U D LIP
O f C ou n sel f o r B lo o m fie ld Hills C ou n sel f o r B lo o m fie ld Hills
S c h o o l D istrictS c h o o l D istrict
KELLER, T H O M A , M cM A N U S ,
TOPPIN & S C H W A R Z E
Of Counsel fo r B irm ingham Public
Schools, N orth ville Public
Schools and S ou th ga te
C om m unity S ch o ols
DELL, S H A N T Z, B O O K E R &
SHULTE
Of Counsel fo r Clarenceville
School D istrict, S ou th B e d fo r d
Schools and W est B lo o m fie ld
School D istrict
RAYMOND G. GLIM E and
MATHER, G L IM E & D A O U S T
Of Counsel fo r C lintondale
Com m unity S ch o ols
SEMPLINER, T H O M A S & G U T H
Of Counsel f o r P lym o u th
C om m unity S c h o o l D istr ict o f
Wayne and W ashtenaw C ou n ties
C H A R L E S E. K E L L E R
T H O M A S H . S C H W A R Z E
Suite 1 6 0 0 — P e n ob sco t B uilding
D e tro it , M ich igan 4 8 2 2 6
C ou n sel f o r B irm ingham Public
S ch ools, N orth ville Public
S c h o ols and S ou th ga te
C o m m u n ity S ch ools
JO H N F . S H A N T Z
2 2 2 W ashin gton Square B uilding
R o y a l O ak , M ichigan 4 8 0 6 7
C ou n sel f o r Clarenceville S c h o ol
D istrict, S ou th R e d fo rd
S c h o ols and W est B lo o m fie ld
S c h o o l D istrict
R A Y M O N D M cP E T E R S
4 0 3 M a com b D aily B uild ing
M ou n t C lem en s, M ichigan 4 8 0 4 3
C ou n sel f o r L ’A n s e Creuse
Public S ch o ols
W A L T E R J. G U T H , JR .
711 W est A n n A r b o r Trail
P ly m o u th , M ich igan 4 8 1 7 0
C ou n sel f o r P lym o u th C om m u n ity
S c h o o l D istr ict o f W ayne and
W ashtenaw C ou n ties
T O N Y F E R R IS
158 Cass A ven u e
M ou n t C lem en s, M ichigan 4 8 0 4 3
C ou n sel f o r Van D y k e Public
S c h o ols
P E R R Y C H R IS T Y
O n e Parklane B oulevard
D ea rb orn , M ichigan 4 8 1 2 6
C ou n sel f o r W estw o o d
C o m m u n ity S c h o o l D istrict
I n T he
Supreme Court of the United States
O c to b er T er m , 1973
No. 73-434
WILLIAM G. MILLIKEN, et al.,
vs.
RONALD G. BRADLEY, et al.,
Petitioners,
Respondents,
No. 73-435
ALLEN PARK PUBLIC SCHOOLS, et al.,
Petitioners,
vs.
RONALD G. BRADLEY, et al.,
Respondents,
No. 73-436
THE GROSSE POINTE PUBLIC SCHOOL SYSTEM,
Petitioner,
vs.
RONALD G. BRADLEY, et al.
Respondents.
O n A ppea l fro m th e U n it e d S ta tes C o u r t o f
A ppeals fo r the Six th C ir c u it
BRIEF OF AMICI CURIAE
IN SUPPORT OF PETITIONERS
1
TABLE OF CONTENTS
Page
INTERESTS OF AMICI CURIAE ............................................. 1
SUMMARY OF ARGUMENT ......................................................2
ARGUMENT................................................................... 5
I. THE INTERESTS OF THE UNDERSIGNED
SCHOOL DISTRICTS IN THE PROCEEDINGS
BELOW COULD NOT ADEQUATELY BE REP
RESENTED BY OTHERS ...........................................5
r
II. THE FAILURE OF THE COURTS BELOW TO
ASSURE THE UNDERSIGNED SCHOOL DIS
TRICTS A FULL AND FAIR HEARING ON ALL
ISSUES AFFECTING THEM CONSTITUTES A
DENIAL OF DUE PROCESS ................................. 11
III. BECAUSE THE VOIDING OF STATE STAT
UTES EMBODYING IMPORTANT STATE POLI
CIES IS NECESSARILY INVOLVED, A ONE-
JUDGE DISTRICT COURT LACKS JURISDIC
TION TO ORDER METROPOLITANIZATION . . 18
CONCLUSION .......................................................................... 25
11
INDEX OF AUTHORITIES
Page
Cases
Armstrong v. Manzo
380 U.S. 545
85 S. Ct. 1187
14 L. Ed. 2d 62 (1965) ..........................................................12
Attorney General v. Lowrey
131 Mich. 639
92 N.W. 289 (1902)
aff’d, 199 U.S. 233
26 S. Ct. 27
50 L. Ed. 167 (1905) ............................................................ 20
Board o f Managers o f Arkansas Tr. Sch. v. George
377 F.2d 228 (C.A. 8, 1 9 6 7 )................................................. 24
Bradley, et al. v. Milliken, et al.
433 F.2d 897 (C.A. 6, 1970)
438 F.2d 945 (C.A. 6, 1971)
468 F.2d 902 (C.A. 6, 1972)
cert denied, 409 U.S. 844 (1972)
338 F. Supp. 582 (E.D. Mich., 1971)
345 F. Supp. 914 (E.D. Mich.. 1972)
aff’d in part, rev’d in part,
484 F.2d 215 (C.A. 6, 1973)
cert granted 42 U.S.L.W. 3306
(U.S. Nov. 19, 1973) ................................................... 2,3,16.19
Ex Parte Bransford
310 U.S. 354
60 S. Ct. 947
84 L. Ed. 1249(1940) ......................................................... 24
Briggs v. Elliott
347 U.S. 483
74 S. Ct. 686
98 L. Ed. 873 (1954) ............................................................19
Britton v. Green
325 F.2d 377 (C.A. 10, 1 9 6 3 )........... ...................................17
Ill
Cases (cont’d.)
Brown v. Board o f Education
347 U.S. 483
74 S. Ct. 686
98 L. Ed. 873 (1954) ..................
Page
Calcote v. Texas Pac. Coal & Oil Co.
157 F.2d 216 (C.A. 5, 1946)
cert denied, 329 U.S. 782
67 S. Ct. 205
91 L. Ed. 671 (1946) .................... ..
Child Welfare Society v. Kennedy School District
220 Mich. 290
189 N.W. 1002 (1922) .............
Davis v. County School Board
347 U.S. 483
74 S. Ct. 686
98 L. Ed. 873 (1954) .............................
Hazeltine Research, Inc. v. Zenith Radio Corp.
338 F.2d 25 (C.A. 7, 1967)
modified, 395 U.S. 100
89 S. Ct. 1562
23 L. Ed. 2d 129(1969) ................ 13
Hey man v. Kline
444 F.2d 65 (C.A. 2, 1 9 7 1 ).................... . . . . 15
Him v. Detroit Superintendent o f Schools
376 Mich. 225
136 N.W. 2d 10 (1965) ................
Idlewild Bon Voyage Liquor Corp. v. Epstein
370 U.S. 713
82 S. Ct. 1294
8 L. Ed. 2d 794(1962) ..................
Irving Parents’ & Landowners’ Association
v. State Board o f Education
45 Mich. App. 387
206 N.W. 2d 503 (1973)
leave to appeal denied
(Slip Opinion, July 26, 1973) ...................... ......... 9
IV
Cases (con t’d )
Page
Jenkins v. McKeithen
395 U.S. 411
89 S. Ct. 1843
23 L. Ed. 2d 404(1969) ....................................................... 13
Jones v. Branigin
433 F.2d 576 (C.A. 6, 1 9 7 0 )................................................. 20
Jones v. Grand Ledge Public Schools
349 Mich. 1
84 N.W. 2d 327 (1957) .............................................................. 5,6
MacQueen v. Port Huron City Commission
194 Mich. 328
160 N.W. 627 (1916) ............................................................ 6
Moor v. County o f Alameda
411 U .S.693
93 S. Ct. 1785
36 L. Ed. 2d 596 (1973)
reh. denied, 412 U.S. 963(1973) ........................................ 7
Petitions for Writ o f Certiorari filed by Bloomfield Hills
School District, School District o f the City o f Birmingham,
West Bloomfield School District and Clarenceville School Dis
trict
cert denied, 410 U.S. 954
35 L. Ed. 2d 687 (1973) ....................................................... 21
Phillips v. United States
312 U.S. 246
61 S. Ct. 480
85 L. Ed. 800(1941) ............................................................ 18
Provident Tradesmens Bank & Trust Co. v. Patterson
390 U.S. 102
88 S. Ct. 733
19 L. Ed. 2d 936 (1968) ....................................................... 12
Sailors v. Board o f Education o f the County o f Kent
387 U.S. 105
87 S. Ct. 1549
18 L. Ed. 2d 650 (1967) ....................................................... 24
V
San Antonio Independent School District v. Rodriguez
411 U.S. 1
93 S. Ct. 1278
36 L. E d .2d 16 (1973)
reh.denied, 411 U.S. 959 (1973) ...............................
Cases (cont’d)
Page
9,10,12
Spencer v. Kugler
326 F. Supp. 1235 (D.C. N.J., 1971)
aff’d, 404 U.S. 1027
92 S. Ct. 707
30 L. Ed. 2d 723 (1972) ....................................................... 23
Spencer v. Kugler
454 F.2d 839 (C.A. 3, 1 9 7 2 )...................................... 20,23,24
Spielman Motor Sales Co. v. Dodge
295 U.S. 89
55 S. Ct. 678
79 L. Ed. 1322 (1935) .......................................................... 24
Stratton v. St. Louis S. W. R. Co.
282 U.S. 10
51 S. Ct. 8
75 L. Ed. 135 (1930) ............................................................ 18
Swann v. Chariot t e-Mecklenburg Board o f Education
402 U.S. 1
91 S. Ct. 1267
28 L. Ed. 2d 554 (1971)
reh. denied, 403 U.S. 912
91 S. Ct. 2200
29 L. Ed. 2d 689 (1971) ...................................................11,24
Swift & Co. v. Wickham
382 U.S. I l l
86 S. Ct. 258
15 L. Ed. 2d 194(1965) ...................................................18,19
United States ex rel. McNeill v. Tarumianz
242 F.2d 191 (C.A. 3, 1 9 5 7 )............................................ 23,24
Veiling v. Livonia Board o f Education
382 Mich. 620
171 N.W. 2d 545 (1969) ....................................................... 9
E B. Wilson, Inc. v. Federal Communications Commission
170 F.2d 793 (C.A. D.C., 1948) ................................... 13
VI
i l l
W r i g h t v. C o u n c i l o f C i t y o f E m p o r i a
407 U.S. 451
92 S. Ct. 2196
33 L. Ed. 2d 51 (1972) .......................................................... 12
Z e n i t h R a d i o C o r p . v. H a z e l t i n e R e s e a r c h , I n c .
395 U.S. 100
89 S. Ct. 1562
23 L. Ed. 2d 129(1969) ....................................................... 14
Statutes
Title 28 U.S.C. §2281 ................................................ 18,19,20,22
State Administrative Procedures Act ’
M.C.L.A. 24.201
M.S.A. 3.560(101), e t s e q ..................................................... 9
Michigan Teachers’ Tenure Act
M.C.L.A. 38.71
M.S.A. 15.1971, e t s e q ......................................................21,24
M.C.L.A. 38.91, M.S.A. 15.1991 ............................................... 21
Michigan School Code o f 1955
M.C.L.A. 340.1
M.S.A. 15.3001, e t s e q ...........................................................24
M.C.L.A. 340.3, M.S.A. 15.3003 ............................................... 20
M.C.L.A. 340.21, M.S.A. 15.3021 ............................................ 20
M.C.L.A. 340.51, M.S.A. 15.3051 ............................................ 20
M.C.L.A. 340.52, M.S.A. 15.3052 .............................................20
M.C.L.A. 340.77, M.S.A. 15.3077 ............................................ 21
M.C.L.A. 340.101, M.S.A. 15.3101 ..........................................20
M.C.L.A. 340.102, M.S.A. 15.3102 ..........................................20
M.C.L.A. 340.141, M.S.A. 15.3141 ..........................................20
M.C.L.A. 340.142, M.S.A. 15 .3 14 2 ..........................................20
M.C.L.A. 340.181, M.S.A. 15.3181 ..........................................20
Cases (cont’d)
M.C.L.A. 340,182, M.S.A. 15.3182 ............................................ 20
M.C.L.A. 340.352, M.S.A. 15.3352 .......................................... 6
M.C.L.A. 340.356, M.S.A. 15.3356 .......................................... 21
M.C.L.A. 340.401, M.S.A. 15.3401, e t s e q .............................. 20
M.C.L.A. 340.431, M.S.A. 15.3431, e t s e q .............................. 20
M.C.L.A. 340.461, M.S.A. 15.3461, e t s e q .............................. 20
M.C.L.A. 340.563, M.S.A. 15.3563 .......................................... 6
M.C.L.A. 340.567, M.S.A. 15.3567 ..................................... 6
M.C.L.A. 340.567a, M.S.A. 15.3567(1) ................................. 6
M.C.L.A. 340.569, M.S.A. 15.3569 ...................................... 6,21
M.C.L.A. 340.569c, M.S.A. 15.3569(3) ................................. 6
M.C.L.A. 340.574, M.S.A. 15.3574 .......................................... 6
M.C.L.A. 340.575, M.S.A. 15.3575 ...................................... 9,21
M.C.L.A. 340.576b, M.S.A. 15.3576(2) ................................. 7
M.C.L.A. 340.576c, M.S.A. 15.3576(3) ................................. 7
M.C.L.A. 340.578, M.S.A. 15.3578 .......................................... 6
M.C.L.A. 340.582, M.S.A. 15.3582 .......................................... 21
M.C.L.A. 340.583, M.S.A. 15.3583 ...................................... 7,21
M.C.L.A. 340.584, M.S.A. 15.3584 .......................................... 7
M.C.L.A. 340.585, M.S.A. 15.3585 .......................................... 7
M.C.L.A. 340.586, M.S.A. 15.3586 ........... 7
M.C.L.A. 340.587, M.S.A. 15.3587 .......................................... 7
M.C.L.A. 340.589, M.S.A. 15.3589 ...................................... 7,21
M.C.L.A. 340.590, M.S.A. 15.3590, e t s e q ............................ 7
M.C.L.A. 340.602, M.S.A. 15.3602 .......................................... 7
M.C.L.A. 340.605, M.S.A. 15.3605 ........... 7
M.C.L.A. 340.613, M.S.A. 15 .3613 .......................................... 7
M.C.L.A. 340.614, M.S.A. 15 .3614 ........................................ 6,21
M.C.L.A. 340.711, M.S.A. 15.3711, e t s e q ............................ 6
vii
Statutes (cont’d)
Page
M.C.L.A. 340.882, M.S.A. 15.3882 .......................................... 21
M.C.L.A. 388.201, M.S.A. 15.1916(101) .............................. 9
M.C.L.A. 388.681, M.S.A. 15.2299(1) ................................... 9
M.C.L.A. 388.711, M.S.A. 15.2299(51), e t s e q ....................9,20
M.C.L.A. 388.1009, M.S.A. 15.1023(9) ................................. 9
M.C.L.A. 388.1015, M.S.A. 15.1023(15) ............................... 9
Public Employment Relations Act
M.C.L.A. 423.201
M.S.A. 17.455(1), e t s e q .....................................................21,24
M.C.L.A. 423.209, M.S.A. 17.455(9) ...................................... 21
Constitutions
U.S. Const, amend. V ....................................................................11
Mich. Const, art. VIII, §2 (1963)....................................... 5,9,21
Mich. Const, art. VIII, §3 (1963)......................................7,8,9,10
Mich. Const, art. IX, §6 (1963) ............................................. 5
Mich. Const, art. IX, § 11 (1 9 6 3 )............................................. 5
Mich. Const, art. IX, § 16 (1963) ............................................. 5
Convention Comment, Mich. Const.
art. VIII, §3 (1 9 6 3 )............................................ 7,8
Court Rules
Rule 19, F.R.C.P..................................................................... 3,16,17
Treatises
Note, “The Three Judge District Court: Scope and Procedure
Under §2281”
77 Harv. L. Rev. 299 (1963) ................................................ 20
Reed, “ Compulsory Joinder o f Parties in Civil Actions”
55 Mich. L. Rev. 327 (1957) ................................................ 12
Wright & Miller, FEDERAL PRACTICE AND PROCEDURE
§ 1602(a), nn. 48-52 (1972) ...................................................17
viii
Statutes (cont’d)
Page
In T he
Supreme Court of the United States
O c t o b e r T e r m , 1973
No. 73-434
WILLIAM G. MILLIKEN, et al„
vs.
RONALD G. BRADLEY, et al„
P e t i t i o n e r s ,
R e s p o n d e n t s ,
No. 73-435
ALLEN PARK PUBLIC SCHOOLS, et al„
vs. P e t i t i o n e r s ,
RONALD G. BRADLEY, et al„
R e s p o n d e n t s ,
No. 73-436
THE GROSSE POINTE PUBLIC SCHOOL SYSTEM,
vs P e t i t i o n e r ,
RONALD G. BRADLEY, et al.,
R e s p o n d e n t s .
O n A p p e a l f r o m t h e U n it e d S t a t e s C o u r t o f
A p p e a l s f o r t h e S ix t h C ir c u it
BRIEF OF AMICI CURIAE
IN SUPPORT OF PETITIONERS
INTERESTS OF AMICI CURIAE
A m i c i c u r i a e are the following Michigan school districts:
Birmingham Public Schools, Bloomfield Hills School District,
CJarenceville School District, Clintondale Community Schools,
LAnse Creuse Public Schools, Northville Public Schools, Ply-
mouth Community School District o f Wayne and Washtenaw
2
Counties, Southgate Community Schools, South Redford Schools,
Van Dyke Public Schools, West Bloomfield School District, and
Westwood Community School District. Approximately 88,900
pupils are currently enrolled in the schools in these districts. A m i c i
are located in Macomb, Oakland, Washtenaw and Wayne Counties
in southeastern Michigan and are affected by the Rulings and
Orders entered by the District Court in B r a d l e y v. M i l l i k e n and
approved by the Court of Appeals for the Sixth Circuit. Not being
parties to the trial proceedings in B r a d l e y , a m i c i have been af
forded no meaningful opportunity to litigate any of the matters
presented to the District Court, nor have they had standing to ap
peal its Rulings and Orders. Although a m i c i were joined as defen
dants by Order of the District Court dated September 10, 1973, as
entities whose presence has been deemed necessary for public
school metropolitanization, no assurance was accorded them of a
meaningful opportunity to challenge the constitutional predicate
for metropolitanization.
SUMMARY OF ARGUMENT
A m i c i c u r i a e are school districts organized and operating un
der the Constitution and laws of the State o f Michigan. According
to Michigan law, each school district is a corporate body having
independent legal status and possessing broad powers with respect
to educating the public school children residing within its geogra
phic boundaries.
None o f the undersigned school districts was joined as a de
fendant in the proceedings below until September 10, 1973, al
though the Complaint was filed on August 18, 1970, and an exten
sive trial and several appeals intervened. Even though the District
Court took no proofs with respect to the establishment of the
boundaries o f the undersigned school districts or whether they had
committed any act of d e j u r e segregation, eight o f them were in
cluded within the so-called “ desegregation area” described in the
District Court’s Ruling on Desegregation Area and Order for De-
3
velopment o f Plan o f Desegregation entered on June 14, 1972.H]
On the basis o f its finding that school districts which are to
be affected by the decree of the District Court are “ necessary par
ties” under Rule 19, F.R.C.P., and, as a consequence, must be
made parties to the litigation, the Court o f Appeals vacated the
District Court’s June 14, 1972 Ruling and Order.[2] However, the
District Court’s September 27, 1971, March 24, 1972 and March
28, 197 2 Rulings, which are the predicate for that vacated order,
were affirmed.^]
Two fatal errors permeate the rulings below:
First, the District Court concluded that a finding of consti
tutional violation within the School District o f the City o f Detroit
permitted it to order metropolitanization o f public schooling, not
withstanding the absence o f a finding o f constitutional violation in
any school district other than Detroit. In sanctioning this proce
dure, the Court o f Appeals disregarded this Court’s prior decisions
holding that the exercise o f judicial power must be predicated
upon a finding o f constitutional violation. Because no such finding
̂ 1 The District Court’s vacated June 14, 1972 Ruling and Order required
the inclusion of 53 school districts in addition to Detroit to comprise
the “ desegregation area” (10a). * On August 31, 1973, plaintiffs filed
an Amended Complaint, in which they allege that 84 local and inter
mediate school districts in addition to Detroit are necessary for deseg
regating Detroit’s public schools. Of the 84, eight of amici are identified
in Paragraph 15 of the Amended Complaint, and four of amici are id
entified in Paragraph 16 (la 297-la 298).
Parenthetical page references followed by the letter “a” refer to the
appendix filed by Petitioners in conjunction with their Petitions for
Writ of Certiorari; page references preceded by a Roman numeral and
the letter “ a” refer to the five-volume appendix filed in this Court with
Petitioners’ Brief.
121 Bradley v. Milliken, 433 F. 2d 897 (C.A. 6 , 1970); 438 F.2d 945 (C.A.
6, 1971); 468 F.2d 902 (C.A. 6, 1972); cert, denied 409 U.S. 844
(1972); 338 F. Supp. 582 (E.D. Mich., 1971); 345 F. Supp. 914 (E.D.
Mich., \912)',aff’din part, rev’d in part, 484 F.2d 215 (C.A. 6, 1973);
cert, granted 42 U.S.L.W. 3306 (U.S., Nov. 19, 1973).
The Court of Appeals affirmed the March 24, 1972 Ruling, in part, but
vacated it (190a). The affirmance apparently relates to metropolitaniza
tion (172a-l 7 3a).
131
4
has been made with respect to school districts other than Detroit,
it was error to decree metropolitanization.
Second, the June 12, 1973 decision o f the Court of Appeals
deprived the undersigned school districts of due process because it
failed to vacate the District Court’s Ruling on Issue of Segregation
(September 27, 1971), Ruling on Propriety o f Considering a
Metropolitan Remedy to Accomplish Desegregation of the Public
Schools o f the City of Detroit (March 24, 1972) and Findings of
Fact and Conclusions o f Law on Detroit-Only Plans of Desegrega
tion (March 28, 1972). These three Rulings are the essence of the
case. They were predicated upon evidence developed in a trial con
ducted in the absence of the undersigned school districts. Thus,
these districts were deprived of an opportunity to be heard at a
meaningful time in the proceedings.
The undersigned school districts should have been joined as
parties to the action as soon as the District Court had reason to
believe that their interests might be affected. Its failure to join
them, either on its own motion or by granting the motion to com
pel joinder that pended before the District Court from June 17,
1971 until June 14, 1972, was error. Even though the Court of
Appeals has now required the joinder o f all affected school dis
tricts, the District Court’s error has not been corrected because the
Rulings o f September 27, 1971, March 24, 1972 Wand March 28,
1972, upon which the joinder o f those school districts is predi
cated, were not vacated. In fact, the Court o f Appeals did not even
require the District Court to receive any additional evidence with
respect to these Rulings. Joinder of parties after the critical issues
of a case have been decided vitiates due process.
A m i c i raise this additional argument: Metropolitanization
will necessarily involve the invalidation o f state statutes imple
menting Michigan’s policy to retain local initiative and control of
public schools in local school districts. Consequently, if this mat
ter is remanded for further proceedings which could lead to metro
politanization o f independent school districts, this Court should
require the convening o f a three-judge court.
[4] See note 3.
5
ARGUMENT
I. THE INTERESTS OF THE UNDERSIGNED SCHOOL DIS
TRICTS IN THE PROCEEDINGS BELOW COULD NOT
ADEQUATELY BE REPRESENTED BY OTHERS.
The Court o f Appeals sanctioned the District Court’s con
clusion that metropolitanization o f public schools is con
stitutionally required even though the proceedings in the lower
court were conducted in the absence o f many school districts
thereby affected. In so doing, the Court o f Appeals misap
prehended both the legal status and the functional role of local
school districts in Michigan.
It is manifest from an examination o f the laws o f Michigan
that a school district is a corporate entity having independent legal
status and possessing broad responsibility, authority and discretion
with respect to the conduct o f the educational process within its
boundaries. The importance o f local school districts in Michigan
public education is recognized in Article VIII, § 2 o f the Constitu
tion of 1963, which provides:
“ Sec. 2. The legislature shall maintain and support a
system of free public elementary and secondary schools as
defined by law. Every s c h o o l d i s t r i c t shall provide for the ed
ucation of its pupils without discrimination as to religion,
creed, race, color or national origin.” (Emphasis supplied)
Michigan’s reliance upon local school districts to provide for the
education of their pupils is recognized in three other provisions o f
its 1963 Constitution: art. IX, § 6; art. IX, § 11; and art. IX, §
16.
As set forth in M ic h . C o n s t ., art. VIII, § 2 (1963), the autho
rity to delegate powers, duties and responsibilities to local school
districts in Michigan resides in the legislature. In J o n e s v. G r a n d
L e d g e P u b l i c S c h o o l s , 349 Mich. 1, 84 N.W. 2d 327 (1957), the
Michigan Supreme Court said:
“It has been repeatedly recognized by this Court that the leg
islature is vested with complete authority to determine the
6
manner in which the directives o f the Constitution shall be
carried out, the creation and operation o f a system of public
schools, the creating o f school districts, and the powers and
duties o f school officials chosen in accordance with the law ”
(349 Mich. 1,4.)
In fulfillment o f the responsibility vested in it under Michi
gan’s successive constitutions, the legislature presently provides for
the operation o f approximately 600 school districts. Each of these
entities has been established for the purpose o f carrying out the
legislature’s responsibility to maintain and support public educa
tion. In J o n e s v. G r a n d L e d g e P u b l i c S c h o o l s , s u p r a , the Michigan
Supreme Court recognized that local school districts “were given
large plenary powers and control o f school matters.” (349 Mich. 1,
5, quoting from M a c Q u e e n v. P o r t H u r o n C i t y C o m m i s s i o n , 194
Mich. 328, 336, 160 N.W. 627 [ 1916]). This proposition was re
cently reaffirmed in H i e r s v. D e t r o i t S u p e r i n t e n d e n t o f S c h o o l s ,
376 Mich. 225, 136 N.W. 2d 10 (1965).
In furtherance o f its constitutional obligation to “ maintain
and support” public schools in Michigan, the legislature has esta
blished each school district as a “ body corporate” which may sue
and be sued, acquire and take property, and hold, use and sell the
same. M.C.L.A. 340.352, M.S.A. 15.3352. The legislature has
granted to each o f Michigan’s local school boards the responsibi
lity for general care and custody o f the schools and property of its
district, and has empowered each board to make and enforce rules
and regulations for the general management o f its schools and the
preservation o f its property. M.C.L.A. 340.578, M.S.A. 15.3578;
M.C.L.A. 340.614, M.S.A. 15.3614. Among the multitude of spe
cific powers held by local school district authorities are the fol
lowing: The power to acquire lands for school purposes by con
demnation, M.C.L.A. 340.711, M.S.A. 15.3711, e t s e q . ; the power
to hire and contract with teachers and other personnel, M.C.L.A.
340.569, M.S.A. 15.3569; M.C.L.A. 340.569c, M.S.A. 15.3569(3);
M.C.L.A. 340.574, M.S.A. 15.3574; the power to levy taxes neces
sary for all school operating purposes, M.C.L.A. 340.563, M.S.A.
15.3563; the power to borrow against anticipated receipts and to
invest receipts, M.C.L.A. 340.567, M.S.A. 15.3567; M.C.L.A.
340.567a, M.S.A. 15.3567(1); the power to acquire real or per
sonal property and equipment necessary for operation of the
7
school program, M.C.L.A. 340.576b, M.S.A. 15.3576(2); M.C.L.A.
340.576c, M.S.A. 15.3576(3); the power to determine courses of
study, M.C.L.A. 340.583, M.S.A. 15.3583; the power to suspend
or expel pupils, M.C.L.A. 340.613, M.S.A. 15.3613; the power to
receive gifts and bequests for educational purposes, M.C.L.A.
340.605, M.S.A. 15.3605; the power to decide whether to offer a
kindergarten program, M.C.L.A. 340.584, M.S.A. 15.3584; the
power to o ffe r adult education, M.C.L.A. 340.586, M.S.A.
15.3586; the power to offer nursery or day care programs,
M.C.L.A. 340.587, M.S.A. 15.3587; the power to establish and
operate camps, M.C.L.A. 340.602, M.S.A. 15.3602; the power to
establish and operate vocational schools, M.C.L.A. 340.585,
M.S.A. 15.3585; the power to establish attendance areas, M.C.L.A.
340.589, M.S.A. 15.3589; the power to operate and maintain a
bus transportation program, M.C.L.A. 340.590, M.S.A. 15.3590,
e t s e q .
We submit that the foregoing delegations o f power by the
Michigan legislature are persuasive indicia that each Michigan
school district enjoys independent status. C f , M o o r v. C o u n t y o f
A l a m e d a , 411 U.S. 693, 93 S. Ct. 1785, 36 L. Ed. 2d 596 (1973),
r e h . d e n i e d 412 U.S. 963 (1973), at 411 U.S. 719-720. Conse
quently, those districts which could be affected by metropolitani-
zation were entitled to independent participation in the pro
ceedings below from their inception.
The Court of Appeals also failed to perceive that neither the
State Board o f Education nor the state officers named as de
fendants could adequately represent the interests o f the under
signed school districts in the proceedings below. Consequently, it
did not recognize the prejudice to the undersigned school districts
resulting from their absence from the important phases o f those
proceedings. We urge this Court to remedy that error.
There are important legal and functional distinctions between
local school districts and the State Board o f Education. The State
Board o f Education is responsible for providing leadership and
general supervision o f all public education in Michigan. M ic h .
Const, art. VIII, § 3 (1963). Its contemplated function appears
m the Convention Comment to that constitutional provision:
8
“ This is a new section combining and enlarging upon the
provisions in Section 2 and 6, Article XI, o f the present con
stitution. It attempts to embody two fundamental principles:
(1) the concern o f all people in educational processes as a
safeguard for democracy; (2) greater public participation in
the operation o f educational institutions.
“ The enlarged state board provides a policy-making
body on a state level. Michigan is one o f three states that
does not have such a board. Creation o f a state board places
the superintendent in the position o f having constantly avail
able a c o n s u l t a t i v e a n d d e l i b e r a t i v e b o d y o f outstanding citi
zens who are representative o f the people o f the state.
* * *
“ It is proposed that the board be the u n i f y i n g a n d c o
o r d i n a t i n g f o r c e f o r e d u c a t i o n w i t h i n t h e s t a t e a n d r e c e i v e i n
f o r m a t i o n f r o m a l l o f t h e v a r i o u s l e v e l s o f p u b l i c e d u c a t i o n .
Such information would be considered by the board in deter
mining a d v i c e t o l o c a l s c h o o l b o a r d s , g o v e r n i n g b o a r d s o f c o l
l e g e s a n d u n i v e r s i t i e s , a n d t h e l e g i s l a t u r e as to the total needs
o f education in this state.
“ Appointment o f the superintendent o f public instruc
tion by the state board follows present day trends in other
states and would assure selection from among the most com
petent people available. Michigan elects its superintendent
under the present constitution. The superintendent would be
considered as administrative head o f the state department of
education and as such should be a staff officer to the
governor and on his administrative board.” (Convention
Comment, M ic h . C o n s t , art. VIII, § 3 [ 1963]; emphasis sup
plied)
The State Board o f Education serves as a clearinghouse of infor
mation from all levels o f education within the state and, after con
sultation and deliberation, renders advice to other entities within
the state having educational responsibilities.
The legislature has acted to implement the State Board’s con
stitutionally defined role, declaring that it “ serves as the general
planning and coordinating body for all public education including
9
higher education.” M.C.L.A. 388.1009, M.S.A. 15.1023(9). While
the State Board has been granted the power to make rules and reg
ulations, M.C.L.A. 388.1015, M.S.A. 15.1023(15), those rules
must be adopted in accordance with the State Administrative Pro
cedures Act o f 1969. M.C.L.A. 24.201, M.S.A. 3.560(101), e t
s e q I r v i n g P a r e n t s ’ a n d L a n d o w n e r s ’ A s s o c i a t i o n v. S t a t e B o a r d
o f E d u c a t i o n , 45 Mich. App. 387, 206 N.W. 2d 503 (1973), l e a v e
t o a p p e a l d e n i e d (Slip Opinion, July 26, 1973).
It is manifest that the boundaries o f Michigan school districts
are subject to oversight by the legislature and that, under specified
circumstances, the State Board o f Education has been legislatively
authorized to participate in school district reorganizations (168a-
169a). M.C.L.A. 388.681, M.S.A. 15.2299(1); M.C.L.A. 388.711,
M.S.A. 15.2299(51); M.C.L.A. 388.201, M.S.A. 15.1916(101).
The point we emphasize is this: The State Board o f Education is
powerless to alter school district boundaries absent enabling legis
lation.
The Court o f Appeals relied upon W e l l i n g v. L i v o n i a B o a r d o f
E d u c a t i o n , 382 Mich. 620, 171 N.W. 2d 545 (1969) in apparently
concluding that the State Board o f Education, rather than local
school districts, controls public education in Michigan (165a-
171a). But in fact the W e l l i n g case merely confirms what is plain
from Michigan’s Constitution: Responsibility for education in
Michigan is distributed between local school districts, which pro
vide for the education o f their pupils (art. VIII, § 2), and the
State Board o f Education, which provides districts with leadership
and general supervision (art. VIII, § 3). [5]
In short, the distribution o f educational responsibilities
between school districts and the State Board of Education in
Michigan is much like that o f Texas as described in S a n A n t o n i o
I n d e p e n d e n t S c h o o l D i s t r i c t v. R o d r i g u e z , 411 U.S. 1, 93 S. Ct.
The Court of Appeals plainly erred in stating that the State Board of
Education was acting under its constitutional mandate without
legislative authority in establishing an administrative rule requiring local
school boards to provide a minimum number of hours per school year
(167a). In fact, the statute, M .C.L.A. 340.575, M.S.A. 15.3575,
construed in Welling specifically authorized the State Board to establish
rules for its implementation.
1 0
1278, 36 L. Ed. 2d 16 (1973), r e h . d e n i e d 411 U.S. 959 (1973),
where Mr. Justice Powell concluded:
“Although policy decision-making and supervision in certain
areas are reserved to the State, the day-to-day authority over
the management and control’ o f all public elementary and
secondary schools is squarely placed on the local school
boards. *** It cannot be seriously doubted that in Texas edu
cation remains largely a local function and that the pre
ponderating bulk o f all decisions affecting the schools are
made and executed at the local level guaranteeing the greatest
participation by those most directly concerned.” (411 U S 1
52, n. 108.)
Of the remaining state officer defendants, none has any signi
ficant authority over local school districts. The State Superin
tendent o f Public Instruction is selected by the State Board, serves
as its chairman without the right to vote and is responsible for the
execution of its policies. He is the principal executive officer of
the State Department o f Education. The Governor and Attorney
General do not control the operation o f school districts or any
other aspect o f the public educational system in Michigan,
although the Governor is an ex o f f i c i o member o f the State Board
o f Education without vote. (art. VIII, § 3)
School districts in Michigan derive their broad authority over
the operation of public schools both from constitutional recogni
tion and legislative enactments. Their authority extends to the ex
ercise o f independent discretion over vital educational areas, in
cluding basic responsibility for the day-to-day administration of all
public schools in their respective districts. Neither the Michigan
constitution nor any act o f the legislature establishes local school
districts as agencies o f the State Board o f Education, the Super
intendent o f Public Instruction or any other state officer defen
dant. Local school districts are constitutionally, legislatively and
judicially recognized as independent legal entities in the State of
Michigan.
As a consequence, any inference that the State Board of Edu
cation, Governor or any other defendant named in this case could
serve as a proxy for the undersigned school districts in the pro
ceedings in the District Court is without basis in law or fact, nor
11
can it be supported on a functional basis. Accordingly, the opinion
of the Court o f Appeals, insofar as it assumed the existence o f
such a relationship, was erroneous.
II. THE FAILURE OF THE COURTS BELOW TO ASSURE
THE UNDERSIGNED SCHOOL DISTRICTS A FULL AND
FAIR HEARING ON ALL ISSUES AFFECTING THEM
CONSTITUTES A DENIAL OF DUE PROCESS.
Notwithstanding the facts that:
(a) In Michigan, education remains a local function,
where the preponderating bulk o f all decisions affecting the
schools are made and executed at the local level;
(b) the District Court took no proofs respecting the es
tablishment o f the boundaries o f the 86 public school dis
tricts in the counties o f Wayne, Oakland and Macomb; and
(c) the District Court took no proofs on the issue o f
whether any school district (other than the Detroit school
district) committed any act o f d e j u r e segregation,
the District Court decreed that the pluralistic school district con
cept adopted by the people o f the State o f Michigan must be
swept aside, to be supplanted by metropolitanized schools. This
decree was formulated following trial proceedings conducted in
the absence o f the undersigned school districts. These districts
have thus been deprived by the federal courts o f any meaningful
opportunity to be heard with respect to the predicate for metro-
politanization. This procedure has denied them due process under
U.S. Co n s t , amend. V.
The Court o f Appeals confirmed that the District Court had
power to follow this procedure, characterizing school district
boundaries in Michigan as “ artificial” (172a). This characterization
is without foundation either in Michigan law or in the trial record.
Moreover, the labeling o f school district lines as “ artificial bar
riers” ignores the important recent rulings o f this Court in S w a n n
v. C h a r l o t t e - M e c k l e n b u r g B o a r d o f E d u c a t i o n , 402 U.S. 1, 91 S.
Ct. 1267, 28 L. Ed. 2d 554 (1971), r e h . d e n i e d , 403 U.S. 912, 91
1 2
S. Ct. 2200, 29 L. Ed. 2d 689 (1971), and S a n A n t o n i o I n d e p e n
d e n t S c h o o l D i s t r i c t v. R o d r i g u e z , 411 U.S. 1, 93 S. Ct. 1278, 36
L. Ed. 2d 16 (1973), r e h . d e n i e d , 411 U.S. 959 (1973).
This Court stated in S w a n n that “ it is important to remember
that judicial powers may be exercised only on the basis o f a consti
tutional violation.” S w a n n , s u p r a , 402 U.S. 1, 16. C f , W r i g h t s .
C o u n c i l o f C i t y o f E m p o r i a , 407 U.S. 451, 92 S. Ct. 2196,33 L.
Ed. 2d 51 (1972). “This Court has never doubted the propriety of
maintaining political subdivisions within the States and has never
found in the Equal Protection Clause any perse rule o f ‘territorial
uniformity.’ ” S a n A n t o n i o I n d e p e n d e n t S c h o o l D i s t r i c t v. R o d r i
g u e z , 411 U.S. 1, 54 n. 110 (1973). Nevertheless, the Court of
Appeals, without any evidence o f a constitutional violation by any
school district other than Detroit, and without any proofs with
respect to the establishment o f school district boundaries, approv
ed the dismantling o f local school districts in southeastern
Michigan.
It will doubtless be argued that the metropolitanization order
is justified by the District Court’s finding o f constitutional viola
tion with respect to the School District o f the City o f Detroit. It
defies every element o f due process, however, to predicate metro
politanization upon proceedings conducted in the absence of all
but one o f the affected school districts.
Due process requires that each affected school district be af
forded a meaningful opportunity to be heard on all issues - parti
cularly the basic issue o f constitutional violation. The importance
o f meaningful involvement in litigation by a party potentially af
fected thereby as an essential element o f due process has often
been forcefully enunciated by this and other courts:
“ A fundamental requirement o f due process is ‘the op
portunity to be heard.’ *** It is an opportunity which must
be granted at a meaningful time and in a meaningful man
ner.” (Armstrong v. M a n z o , 380 U.S. 545, 552, 85 S. Ct.
1187, 14 L. Ed. 2d 62 [1965])
* * *
13
“ The due process clause of the Fifth Amendment
provides that no person shall be deprived of life, liberty or
property without due process o f law. An essential element of
due process is an opportunity to be heard before the reaching
of a judgment. By due process o f law is meant ‘a law, which
hears before it condemns; which proceeds upon inquiry, and
renders judgment only after trial.’ Trustees of Dartmouth
College v. Woodward, U.S. 1819, 4 Wheat. 518, 581,4 L.Ed.
629 (Webster’s argument). As said in Galpin v. Page, U.S.
1873, 18 Wall. 350, 368, 21 L.Ed. 959: ‘It is a rule as old as
the law, and never more to be respected than now, that no
one shall be personally bound until he has had his day in
court, by which is meant, until he has been duly cited to
appear, a n d h a s b e e n a f f o r d e d a n o p p o r t u n i t y t o b e h e a r d .
Judgment without such citation and opportunity wants all
the attributes o f a judicial determination: it is judicial usurpa
tion and oppression, and never can be upheld where justice is
justly administered.’ (Italics supplied).” ( L . B . W i l s o n , I n c . v.
F e d e r a l C o m m u n i c a t i o n s C o m m i s s i o n , 170 F.2d 793, 802
[(C.A. D.C., 1948)]
* ❖ *
“ We have frequently emphasized that the right to con
front and cross-examine witnesses is a fundamental aspect of
procedural due process.” ( J e n k i n s v. M c K e i t h e n , 395 U.S.
411, 428, 89 S. Ct. 1843, 23 L. Ed. 2d 404 [(1969)]
The requirement of due process has been applied in circum
stances analogous to those before this Court in this appeal. In
H a z e l t i n e R e s e a r c h , I n c . v. Z e n i t h R a d i o C o r p . , 388 F. 2d 25
(C.A. 7, 1967), m o d i f i e d , 395 U.S. 100, 89 S. Ct. 1562, 23 L.Ed.
2d 129 (1969), the court o f appeals concluded that the district
court lacked jurisdiction to enter judgment against the parent cor
poration o f Hazeltine Research, Inc., even though there were signi
ficant similarities in personnel and operations between the parent
and its subsidiary and despite the parent’s informed awareness of
the litigation. In reaching this result, the court o f appeals empha
sized that the parent had not been named as a party, was not
served with process and did not participate in the trial except to
appear specially to contest entry o f judgment against it. The court
14
of appeals reasoned that the parent was not “adequately represent
ed” at trial by the subsidiary on an “ alter ego” theory because
that issue could only be resolved after an adversary determination
of the facts involved.
The opinion o f the court o f appeals was affirmed in pertinent
part in Z e n i t h R a d i o C o r p . v. H a z e l t i n e R e s e a r c h , I n c . , 3 9 5 U.S.
100, 89 S. Ct. 1562, 23 L. Ed. 2d 129 (1969), in which this Court
said:
“ The Court of Appeals was quite right in vacating the
judgments against [the parent corporation]. It is elementary
that one is not bound by a judgment i n p e r s o n a m resulting
from litigation in which he is not designated as a party or to
which he has not been made a party by service o f process.
H a n s b e r r y v. L e e , 311 U.S. 32, 40-41 (1940). The consistent
constitutional rule has been that a court has no power to ad
judicate a personal claim or obligation unless it has juris
diction over the person o f the defendant. E.g., P e n n o y e r v.
N e f f 95 U.S. 714 (1878); V a n d e r b i l t v. V a n d e r b i l t , 354 U.S.
416,418 (1957).” (395 U.S. 100, 110)
The H a z e l t i n e ruling, we contend, applies here. The under
signed school districts were not named as parties, were not served
with process, and had no opportunity to participate in the trial of
any o f the issues now before this Court on appeal. The District
Court did not purport to obtain jurisdiction over them until entry
o f its Order joining them dated September 10, 1973. Until then,
the District Court was without power to adjudicate matters
affecting the undersigned school districts.
The fact that certain state defendants were named as parties
to the action from the outset does not, under the H a z e l t i n e rule,
permit the District Court to bind the undersigned school districts
by its decree. First, as established in the first section of this brief,
Michigan school districts are bodies corporate, with distinct
powers to sue and be sued. Moreover, the state defendants had
neither the power nor the duty to “ adequately represent” the in
terests o f the undersigned school districts at the trial of the basic
issue o f constitutional violation. They could not have done so,
even if so empowered, because the question o f constitutional
violation in any school district other than Detroit was not in issue.
15
Accordingly, all o f the rulings and orders o f the District
Court, specifically including those relating to the question o f
constitutional violation, should be vacated. The failure to name
the undersigned school districts as defendants prior to trial, and
the failure to allege any wrongdoing on their part, precluded ade
quate representation o f their interests. See also, H e y m a n v. K l i n e ,
444 F. 2d 65 (C.A. 2, 1971).
The Court o f Appeals, while characterizing Michigan school
districts as “ instrumentalities o f the State created for administra
tive convenience” (165a), ultimately accepts our analysis o f their
status. This is apparent from its holding that school districts
“which are to be affected by the decree o f the District Court are
‘necessary parties’ ” , and must be made parties to this litigation
“and afforded an opportunity to be heard” (177a). Yet the man
date of the Court o f Appeals is constitutionally deficient because
it does not require the District Court to reopen the proceedings
upon which metropolitanization was predicated.
Counsel for plaintiffs’ description o f the expected format o f
further proceedings at trial underscores this fatal deficiency in the
mandate o f the Court of Appeals:
“ JUDGE DeMASCIO: The question I’m concerned
about: What was the reason or reasons for vacating the
metropolitan order?
“ MR. LUCAS: I think simply because one o f the parties
who should have been there when the metropolitan remedy
was shaped, or a number o f parties, weren’t there. It’s as if
this Court did not grant the defendant the presence at his
sentencing, and the Court of Appeals sent it back and said:
He’s got to be resentenced, and that’s maybe an unfortunate
analogy, but I tried to put it within the framework o f this
Court. ” [6]
This colloquy depicts proceedings on remand quite different from
those described in plaintiffs’ Response To Petitions For Cer-
tiorariJT]
^ Transcript of argument on Motion of School District of the City of
Detroit heard on December 11, 1972 before District Judges Kaess,
Kennedy and De Mascio during absence from the bench of Judge
Stephen J. Roth, at 64.
See n. 2, p. 3, plaintiffs’ Memorandum in Opposition to Petitions for
Writs of Certiorari.
[7]
1 6
The Court o f Appeals recognized that the undersigned school
districts should have been joined as parties:
“ We hold that school districts which are to be affected
by the decree of the District Court are ‘necessary parties’
under Rule 19. As a prerequisite to the implementation of a
plan in this case affecting any school district, the affected di
strict first must be made a party to this litigation and
afforded an opportunity to be heard.” (177a; 484 F 2d 215
251-252)
However, its mandate to the District Court falls short o f meeting
the obligation embodied in Rule 19, F.R.C.P., because it does not
compel vacation o f the District Court’s September 27, 1971 Rul
ing on the Issue o f Segregation (17a), its March 24, 1972 Ruling
on Propriety o f Considering a Metropolitan Remedy to Ac
complish Desegregation o f the Public Schools o f the City of
Detroit (48a) [8] or its March 28, 1972 Findings o f Fact and Con
clusions o f Law on the Detroit-Only Plans o f Desegregation (53a).
Those rulings o f the District Court are the essence o f the case.
They significantly affect the interests o f the undersigned school
districts, and should not be permitted to stand now that these
school districts have been joined.
Under the mandatory language o f Rule 19, the District Court
was obligated to join as a defendant any school district not before
it upon discovering that disposition o f the action in the absence of
that school district might, as a practical matter, impair or impede
its ability to protect an interest affected by the action. Rule 19(a),
F.R.C.P. The District Court’s failure to order timely joinder, and
the Court o f Appeals’ subsequent refusal to vacate the ruling on
constitutional violation, have deprived the undersigned school
districts o f their right to protect their interests.
The potentiality o f metropolitanization was apparent to the
District Court early in the trial proceedings. The trial judge indi
cated his awareness o f the metropolitan thrust o f the litigation
well before filing the September 27, 1971 Ruling on the Issue of
Segregation.[9] He did not, however, take the step which Rule 19
compels: Joinder of all school districts whose interests might be
affected by metropolitanization.
^ See note 3.
[9]
See colloquy between District Court and counsel for plaintiff at Ha 44
and between District Court and witness at Ilia 90, Ilia 92 and Ilia 153.
17
On June 17, 1971, intervening defendants Magdowski, e t a l . ,
filed a motion requesting entry o f an order joining as parties de
fendant all o f the school districts located in the counties o f
Macomb, Oakland and Wayne, describing those school districts as
entities without which complete relief could not be granted to
plaintiffs (la 119). The District Court continued the motion under
advisement by Order entered March 15, 1972 (la 204) and con
sidered it as withdrawn by Order entered June 14, 1972 (Ct. of
Appeals app., Ia 407).
As outsiders, nonparties to the proceedings below, the under
signed school districts cannot be bound by any ruling o f the Dis
trict Court. This proposition was recently reaffirmed in P r o v i d e n t
T r a d e s m e n s B a n k & T r u s t C o . v. P a t t e r s o n , 390 U.S. 102, 88 S.
Ct. 733, 19 L.Ed. 2d 936 (1968), wherein this Court stated:
“Of course, since the outsider is not before the court, he can
not be bound by the judgment rendered. This means, how
ever, only that a judgment is not r e s j u d i c a t a as to, or legally
enforceable against, a nonparty.” (390 U.S. 102, 110.)
Consequently, the September 27, 1971 Ruling, the March 24,
1972 Ruling and the March 28, 1972 Findings are not binding
upon the undersigned nonparty school districts. Nonjoinder o f a
party may be raised on appeal, s u a s p o n t e . In the event of remand,
the nonparty school districts should be permitted a full opportun
ity to litigate the matters in issue affecting their interests. Failure
to accord this opportunity constitutes a violation o f due process.
Se t B r i t t o n v. G r e e n , 325 F.2d 377 (C.A. 10, 1963); C a l c o t e v.
T e x a s P a c . C o a l & O i l C o . , 157 F.2d 216, 224 (C.A. 5, 1946), c e r t ,
d e n i e d , 329 U.S. 782, 67 S. Ct. 205, 91 L. Ed. 671 (1946); Reed,
“Compulsory Joinder o f Parties in Civil Actions” , 55 Mich. L.
Rev. 327, 336 (1957); Wright & Miller, FEDERAL PRACTICE
AND PROCEDURE, § 1602(a), nn. 48-52 (1972).
If this Court does not vacate the September 27, 1971, March
24, 1972 and March 28, 1972 decisions of the District Court, the
undersigned school districts should be dismissed as parties because
the Rulings affecting them were based upon proceedings con
ducted in the absence o f indispensable parties. Any other conclu
sion contravenes “ equity and good conscience.” Rule 19(b),
F.R.C.P.
18
III. BECAUSE THE VOIDING OF STATE STATUTES EM
BODYING IMPORTANT STATE POLICIES IS NECES
SARILY INVOLVED, A ONE-JUDGE DISTRICT COURT
LACKS JURISDICTION TO ORDER METRQPOLITANIZA-
TION.
The District Court erred, once it had concluded that Detroit-
only plans o f desegregation were inadequate, because it failed to
convene a three-judge district court pursuant to Title 28, U.S.C. §
2281. The Court o f Appeals also erred by failing to order the con
vening o f a three-judge court on remand. I d l e w i l d B o n V o y a g e
L i q u o r C o r p . v. E p s t e i n , 370 U.S. 713, 82 S. Ct. 1294, 8 L. Ed. 2d
794(1962).
Under 28 U.S.C. § 2281, a single-judge district court is pro
hibited from restraining the enforcement, operation or execution
by state officials o f state statutes o f general application upon the
ground of the unconstitutionality o f such statutes. Because they
have this restraining effect, the metropolitanization rulings entered
on March 24, 1972 (48a), March 28, 1972 (53a) and June 14,
1972 (97a) by the District Court are void for want o f jurisdiction.
Similarly, the Court o f Appeals exceeded its jurisdiction in affirm
ing the March 24 and March 28, 1972 rulings. S t r a t t o n v. S t . L o u i s
S . W . R . C o . , 282 U.S. 10, 51 S. Ct. 8, 75 L. Ed. 135 (1930).
Reduced to its essence, the purpose o f 28 U.S.C. § 2281 is to
provide “ procedural protection against an improvident state-wide
doom by a federal court o f a state’s legislative policy.” P h i l l i p s v.
U n i t e d S t a t e s , 312 U.S. 246, 251, 61 S. Ct. 480, 483, 85 L. Ed.
800 (1941). As described by Mr. Justice Harlan in S w i f t & C o . v.
W i c k h a m , 382 U.S. I l l , 86 S. Ct. 258, 15 L. Ed. 2d 194 (1965):
“ Section 2281 was designed to provide a more responsi
ble forum for the litigation o f suits which, if successful,
would render void state statutes embodying important state
policies. The statute provides for notification to the State of
a pending suit, 28 USC § 2284 (2) (1964 ed), thus prevent
ing ex parte injunctions common previously. It provides for
three judges, one o f whom must be a circuit judge, 28 USC §
2284 (1) (1964 ed), t o a l l o w a m o r e a u t h o r i t a t i v e d e t e r m i n a
t i o n a n d l e s s o p p o r t u n i t y f o r i n d i v i d u a l p r e d i l e c t i o n i n s e n s i -
19
t i v e a n d p o l i t i c a l l y e m o t i o n a l a r e a s . It authorizes direct
review by this Court, 28 USC § 1253, as a means o f acceler
ating a final determination on the merits; . . (382 U.S. I l l ,
119; emphasis added)
Recognizing that 28 U.S.C. § 2281 has frequently been applied in
desegregation cases (B r o w n v. B o a r d o f E d u c a t i o n , B r i g g s v.
E l l i o t t , and D a v i s v. C o u n t y S c h o o l B o a r d , 347 U.S. 483, 74 S. Ct.
686, 98 L. Ed. 873 [1954]), the question is: Does the require
ment for a three-judge court apply in the case at bar?
So long as the proceedings in this case were confined to issues
respecting the School District o f the City o f Detroit, the case was
properly heard by a district court o f one judge because the issues
were then “ local in application.” B r a d l e y v. M i l l i k e n , 433 F.2d
897, 900 n.2 (C.A. 6, 1970). But the “ local” nature o f the litiga
tion ended when the District Court decided to apply its orders to
school districts other than Detroit.
Sanctioned by the opinion o f the Court of Appeals, and pur
suant to the September 10, 1973 Order o f the District Court (la
300), metropolitanization will affect 85 local school districts.
These 85 districts educate approximately 932,300 children, or
roughly 43.1% o f Michigan’s total school population. [ 10] Any
metropolitanization order will necessarily restrain the operation of
state statutes affecting some or all o f these independent school dis
tricts, including large numbers of teachers and administrators. In
the face o f an order o f such magnitude, it can scarcely be argued
0®] As of the date of printing this Brief, the Michigan Department of Edu
cation has indicated that the public school population in the State of
Michigan for 1973-74 totals 2 ,161 ,435 , although this figure may be
subject to adjustment. (Michigan Department of Education Report,
Vol. 8, No. 5, December 10, 1973) Pupil populations for the 85 af
fected local school districts are reported in MICHIGAN EDUCATION
DIRECTORY AND BUYER’S GUIDE 1973-1974, with the exception
of four districts (Hamtramck Public Schools, Inkster Public Schools,
Romulus Community Schools, and Westwood Community Schools),
data with respect to which were excerpted from the “ District Summary
1973 Fourth Friday Report” filed by each of those districts with the
Michigan Department of Education. No data with respect to Macomb
County Intermediate School District, Oakland County Intermediate
School District, or Wayne County Intermediate School District are in
cluded in any of these figures.
2 0
that considerations o f economy in judicial administration prevail
against the convening o f a three-judge court. J o n e s v. B r a n i g i n ,
433 F.2d 576 (C.A. 6, 1970). Failure to convene a three-judge
court under the mandate o f 28 U.S.C. §2281 will more likely
result in “ extended delay, duplication of judicial effort, and harm
to the parties.” See, Note, T h e T h r e e J u d g e D i s t r i c t C o u r t : S c o p e
a n d P r o c e d u r e U n d e r % 2 2 8 1 , 77 Harv. L. Rev. 299, 305(1963). In
the event this cause is remanded to the District Court, ordering the
convention o f a three-judge court now will assure the litigants that
they will not be “ detoured” around a “ procedural avenue”
( S p e n c e r v. K u g l e r , 454 F.2d 839, 846 [C.A. 3,1972] )en route to
the ultimate resolution o f the controversy.
Any order for metropolitanization o f the school districts in
southeastern Michigan must necessarily involve restraining the
enforcement, operation or execution o f statutes of statewide ap
plication. As noted in the first section o f this brief, the entire
statutory plan for delivery o f educational services in Michigan is
predicated upon a system of pluralistic school districts. School
boards within such school districts are charged with the enforce
ment of state statutes within their boundaries. Examples of such
statutes include:
(a) Legislation dealing with school district bound
aries. [ 11 ]
^ ̂ Under Michigan law, the legislature is vested with the authority to pro
vide by statute for the creation or modification of school district
boundaries. Attorney General v. Lowrey, 131 Mich. 639, 92 N.W. 289
(1902), aff’d, 199 U.S. 233, 26 S. Ct. 27, 50 L. Ed. 167 (1905); Child
Welfare Society v. Kennedy School District, 220 Mich. 290, 189 N.W.
1002 (1922). The present legislative policy in this regard is set forth in
M.C.L.A. 340.21, M.S.A. 15 .3021; M.C.L.A. 340.51 , M.S.A. 15.3051;
M .C .L .A . 3 4 0 .1 0 1 , M .S .A . 15.3101; M.C.L.A. 340.141, M.S.A.
15.3141; and M.C.L.A. 340.181, M.S.A. 15.3181, which confirm and
continue the school districts in existence at the time of enactment of
the School Code of 1955. The legislature has also established statutory
procedures in very limited circumstances and under carefully prescribed
statutory guidelines for the reclassification of school districts (M.C.L.A.
340.52, M.S.A. 15 .3052; M.C.L.A. 340.102, M.S.A. 15.3102; M.C.L.A.
340.142, M.S.A. 15.3142; and M.C.L.A. 340 .182 , M.S.A. 15.3182),
and for the dissolution (M.C.L.A. 340.3, M.S.A. 15.3003), consolida
tion (M .C .L .A . 3 4 0 .4 0 1 , M.S.A. 15.3401, et seq.), annexation
(M.C.L.A. 340.431, M.S.A. 15.3431, et seq.), transfer of territory
(M .C .L .A . 340.461, M.S.A. 15.3461, et seq.) and reorganization
(M.C.L.A. 388.711, M.S.A. 15.2299 (51), et seq.) o f school districts.
2 1
(b) The obligation o f each school district to afford
educational opportunities to its resident pupils and to control
the attendance of students who are nonresidents o f the dis
trict (M ic h . C o n s t , art. VIII, § 2 (1963); M.C.L.A.
340 .356 , M .S.A. 1 5 .3356 ; M.C.L.A. 340.589, M.S.A.
15.3589; M.C.L.A. 340.582, M.S.A. 15.3582).
(c) The responsibility o f each school district to employ
and allocate its teaching and administrative staff to educate
resident pupils upon terms satisfactory to each school district
(M.C.L.A. 340.569, M.S.A. 15.3569; M.C.L.A. 423.209,
M.S.A. 17.455(9); M.C.L.A. 38.91, M.S.A. 15.1991) and in
connection therewith each school district must abide by the
Michigan Teachers’ Tenure Act (M.C.L.A. 38.71, M.S.A.
15.1971) and the Public Employees’ Collective Bargaining
Act (M.C.L.A. 423.201, M.S.A. 17.455(1)).
(d) The right o f each school district to control the con
struction, expansion and use o f its school facilities (M.C.L.A.
340.77, M.S.A. 15.3077).
(e) The power o f each school district to provide for the
curriculum, activities, standards o f conduct and safety of stu
dents within each school district. (M.C.L.A. 340.575, M.S.A.
1 5 .3 5 75 ; M.C.L.A. 340.583, M.S.A. 15.3583; M.C.L.A.
340 .61 4 , M .S.A. 15^3614; M.C.L.A. 340.882, M.S.A.
15.3882).
It is clear that implementation of the June 14, 1972 Ruling
and Order of the District Court, now vacated by the Court of Ap
peals, would have restrained each affected school district in the
enforcement, operation and execution of the foregoing stat
utes.!^] It is equally clear that any metropolitanization order
fashioned in proceedings on remand would necessarily require
issuance of an injunction barring the enforcement, operation or ex
ecution o f the foregoing statutes.
s ee petitions for Writ of Certiorari filed in this Court by Bloomfield
Hills School District, School District of the City of Birmingham
Clarenceville School District and West Bloomfield School District, cert.
denied, 410 U.S. 954, 35 L. Ed. 2d 687 (1973); see also la 285- la 286.
2 2
The June 12, 1973 Opinion o f the Court o f Appeals reflects
its belief that a statute o f general application is under constitu
tional challenge in this case. The convening o f a three-judge court
should have been a consequence o f that belief.
In that opinion, the Court o f Appeals summarily rejected the
notion that the boundaries o f Michigan school districts are “ sacro
sanct” (174a) even though such boundaries are legislatively
sanctioned. It described school district boundaries as “ artificial” and
declared that they may be disregarded (172a). Indeed, it held that
school district boundaries in Michigan violate the constitutional
mandate o f B r o w n v. B o a r d o f E d u c a t i o n , 347 U.S. 483, 74 S. Ct.
686, 98 L. Ed. 873 (1954) and that such boundaries “ cannot be
frozen for an unconstitutional purpose” (174a).H3]
Any doubt that the Court o f Appeals concluded that Michi
gan s statutory framework must be subjected to significant
alteration is put to rest by its suggestion that Michigan’s state legis
lature should respond to its opinion (177a). Any judicial action
taken in lieu o f a legislative response must obviously include action
restraining the enforcement o f existing laws o f statewide applica
tion. Only a three-judge court has such power.
The necessity for convening such a tribunal is further con
firm ed upon review o f plaintiffs’ Amended Complaint, filed
August 31, 1973 (la 291). That pleading, on its face, seeks injunc
tive relief extending beyond the geographic boundaries of the
Detroit school district (la 298). The prayer for such relief is pre
dicated upon allegations, i n t e r a l i a , that certain defendants “have
advantaged themselves o f existing school district lines and jurisdic
tional boundaries” (la 295) and that “ present school district
boundaries serve no compelling state interest” (la 296). Because
the Constitution is the only yardstick against which proofs in sup
port o f these allegations may be measured, that requisite of 28
U.S.C. §2281 is present.
That plaintiffs contemplate relief which, if decreed, must
conflict with existing Michigan statutes is likewise apparent from
[13] We reiterate that no proofs were taken by the District Court as to
whether the boundaries of any school district were drawn or main
tained for the purpose of furthering racial segregation (59a-60a).
23
their allegation in the Amended Complaint that the “ pupils,
teachers, resources and facilities” o f some 53 local school districts
(la 297) educating approximately 455,800 pupils in Michigan are
“necessary” to accomplish effective desegregation of the Detroit
schools, which educate approximately 277,500 pupils. Further,
plaintiffs allege that the “ pupils, teachers, resources and facilities”
of an additional 33 local school districts educating approximately
199,000 students [14] are similarly “ necessary” (la 297-la 298).
Plaintiffs specifically invoke the power of the District Court to
review any additions to school building capacity and staff hiring in
the latter group o f districts to determine the effect thereof “ on
the school desegregation plan” (la 298). Manifestly, the operation
of Michigan’s existing public education legislation must be re
strained if the “ pupils, teachers, resources and facilities” of the 85
school districts named in plaintiffs’ Amended Complaint are dis
persed outside their respective boundaries. We reiterate that be
cause the enforcement o f a statute may only be enjoined on con
stitutional grounds ( U n i t e d S t a t e s e x r e l . M c N e i l l v. T a m m i a n z ,
242 F.2d 191 [C.A. 3, 1957]) and because the statutes here
sought to be enjoined are of statewide application, 28TJ.S.C.'§ 2281
is operative.
Notwithstanding pleadings which may be indirect or obscure,
a challenge to the constitutional validity of a state’s education
statutes is “ beyond the discretionary purview of a single-judge dis
trict court and must be submitted to a three-judge panel.” S p e n c e r
v. K u g l e r , 454 F.2d 839, 845 (C.A. 3. 1972). This Court approved
the convening o f a three-judge court where the pleadings presented
a constitutional challenge to existing school district boundaries.
S p e n c e r v . K u g l e r , 326 F. Supp. 1235 (D.C. N.J., 1971), a f f d . .
404 U.S. 1027. 92 S. Ct. 707, 30 L. Ed. 2d 723 (1972).
It is clear that the imposition o f metropolitanized schools in
southeastern Michigan will require interdiction o f statutes o f state
wide application rather than statutes which are “ local in applica-
See note 9 for sources of data. The appendix printed for this Court
apparently does not reflect errata appearing in the Amended Complaint
as filed with the District Court. Those errata include the addition of
Clarenceville, West Bloomfield, Livonia and Garden City to paragraph
15 and deletion of South Lake from paragraph 16 of the Amended
Complaint.
24
tion.” S a i l o r s v. B o a r d o f E d u c a t i o n o f t h e C o u n t y o f K e n t , 387
U.S. 105, 87 S. Ct. 1549, 18 L. Ed. 2d 650 (1967).
It is equally clear that the restraints which metropolitaniza-
tion would necessarily impose upon the enforcement and execu
tion o f such statutes would be restraints upon “ state officers” . As
this Court said in S p i e l m a n M o t o r S a l e s C o . v. D o d g e , 295 U.S. 89,
55 S. Ct. 678, 79 L. Ed. 1322 (1935):
“ Where a statute embodies a policy o f statewide con
cern, an officer, although chosen in a political subdivision
and acting within that limited territory, may be charged with
the duty o f enforcing the statute in the interest of the State
and not simply in the interest o f the locality where he
serves.” (295 U.S. 89, 94)
The members o f Michigan’s local school boards are charged with
the duty o f enforcing, within the boundaries o f each school dis
trict, policies o f statewide concern set forth in the 1963 Michigan
Constitution, the Michigan School Code o f 1955 (M.C.L.A. 340.1,
M.S.A. 15.3001, e t . s e q . ) , Teachers’ Tenure Act (M.C.L.A. 38.71,
M.S.A. 15.1971, e t . s e q . ) and Public Employment Relations Act
(M.C.L.A. 423.201, M.S.A. 17.455, et s e q . ) .
It must be emphasized that plaintiffs’ attack is not based
upon allegations o f erroneous administrative actions by school of
ficials. The attack is upon the constitutionality o f the statutory
scheme itself; consequently, a three-judge court should be con
vened. E x p a r t e B r a n s f o r d , 310 U.S. 354, 60 S. Ct. 947, 84 L Ed.
1249 (1940); S p e n c e r v. K u g l e r , 454 F.2d 839, 844-845 (C.A. 3,
1972).
In order to “ disregard” the “ artificial barriers” posed by local
school district lines (172a), there must be a finding o f a constitu
tional violation { S w a n n , s u p r a ) . To conclude otherwise, permitting
the nullification o f a statute without passing upons its constitu
tionality “ would be a contradiction o f reason, a usurpation of
power.” T a r u m i a n z , s u p r a , 242 F.2d 191, 195 \ B o a r d o f M a n a g e r s
o f A r k a n s a s T r . S c h . F o r B o y s v. G e o r g e , 377 F.2d 228 (C.A. 8,
1967).
25
It is apparent that metropolitanization hearings would en
compass all the requisites o f 28 U.S.C. § 2281. Therefore, if this
case is remanded for such proceedings, a three-judge court should
be convened.
For the reasons stated, it is respectfully submitted that:
A. If the decision o f this Court mandates metropolitaniza
tion proceedings, all rulings below should be vacated and a three-
judge court should be convened;
B. If the decision o f this Court mandates metropolitanization
proceedings but does not vacate all rulings below, this Court
should order the dismissal o f the undersigned school districts;
C. If the decision o f this Court does not mandate metropoli
tanization proceedings, this Court should order the dismissal o f
the undersigned school districts.
CONCLUSION
Respectfully submitted,
FRED W. F R E E M A N ,
CHARLES T . H A R R IS and
DICKINSON, W R IG H T , M cK E A N
& CUD LIP
C H A R L E S F . C L IP P E R T
1 7 0 0 N orth W o o d w a rd A ven u e
P .O . B o x 509
B lo o m fie ld H ills, M ich igan 4 8 0 1 3
O f C ounsel f o r B lo o m fie ld Hills C ou n sel f o r B lo o m fie ld Hills
S ch ool D istr ict S c h o o l D istr ict
KELLER, T H O M A , M cM A N U S ,
TOPPIN & S C H W A R Z E
C H A R L E S E. K E L L E R
T H O M A S H. S C H W A R Z E
S u ite 1 6 0 0 — P e n o b s co t B uilding
D etro it , M ich igan 4 8 2 2 6
O f Counsel f o r Birm ingham Public
Schools, N orth ville P u blic
S chools and S ou th ga te
C om m u n ity S ch o ols
C ou n sel f o r Birm ingham Public
S c h o ols , N orth ville Public
S c h o o ls and S ou th gate
C o m m u n ity S ch o ols
DELL, s h a n t z , b o o k e r &
SHULTE
JO H N F . S H A N T Z
2 2 2 W ash in gton Square B uilding
R o y a l O ak , M ichigan 4 8 0 6 7O f C ounsel f o r Clarenceville
S ch ool D istrict, S ou th R e d fo r d
S chools and W est B lo o m fie ld
S ch ool D istrict
C ou n sel f o r Clarenceville S c h o o l
D istrict, S ou th R e d fo r d
S c h o o ls and W est B lo o m fie ld
S c h o o l D istrict
2 6
R A Y M O N D G . G L IM E and
M A T H E R , G L IM E & D A O U S T
O f C ou n sel f o r C lintondale
C o m m u n ity S c h o ols
S E M P L IN E R , T H O M A S & G U T H
O f C ou n sel f o r P lym o u th
C o m m u n ity S c h o o l D istr ict o f
W ayne and W ashtenaw C ou n ties
R A Y M O N D M cP E T E R S
4 0 3 M a co m b D aily Building
M ou n t C lem en s, M ichigan 48043
C ou n sel fo r L ’A n s e Creuse
P u blic S ch o ols
W A L T E R J. G U T H , JR .
711 W est A n n A r b o r Trail
P ly m o u th , M ich igan 48 170
C ou n sel f o r P lym o u th Community
S c h o o l D istr ic t o f Wayne and
W ashtenaw C ou n ties
T O N Y F E R R IS
158 Cass A ven u e
M ou n t C lem en s, M ichigan 48043
C ou n sel f o r Van D y k e Public
S ch o ols
P E R R Y C H R IS T Y
O n e Parklane B oulevard
D ea rb orn , M ich igan 4 8 1 2 6
C ou n sel f o r W estw o o d
C o m m u n ity S c h o o l District
CERTIFICATE OF SERVICE
I, Charles F. Clippert, one o f the attorneys for a m i c i c u r i a e
Bloomfield Hills School District, et al., and a member o f the Bar
of the Supreme Court o f the United States, hereby certify that on
January 2, 1974, I served copies of the foregoing Motion For
Leave To File Brief As Amici Curiae In Support Of Petitioners and
Brief Of Amici Curiae In Support Of Petitioners on the Petitioners
and Respondents by depositing such copies in the United States
mail, postage prepaid and addressed to the attorneys o f record for
Petitioners and Respondents, as follows:
Richard P. Condit, Esq.
Condit & McGarry, P.C.
860 W. Long Lake Road
Bloomfield Hills, Michigan 48013
Paul R. Dimond, Esq.
210 East Huron Street
Ann Arbor, Michigan 48108
Jack Greenberg, Esq.
Norman J. Chachkin, Esq.
10 Columbus Circle
New York, New York 10019 v
Frank J. Kelley, Attorney General
Eugene Krasicky, Esq.
Assistant Attorney General
720 Law Building
525 West Ottawa Street
Lansing, Michigan 48913
Robert J. Lord, Esq.
8388 Dixie Highway
Fairhaven, Michigan 48023
Louis R. Lucas, Esq.
Ratner, Sugarman & Lucas
525 Commerce Title Building
Memphis, Tennessee 38103
Kenneth P. McConnell, Esq.
Hartman, Beire, Howlett, McConnell
& Googasian
74 W. Long Lake Road
Bloomfield Hills, Michigan 48013
Alexander B. Ritchie, Esq.
Fenton, Nederlander, Tracy, Dodge
& Barris
1930 Buhl Building
Detroit, Michigan 48226
William Ross, Esq.
Ross Bruff & Henriksen
215 S. Gratiot Avenue
Mount Clemens, Michigan 48043
George T. Roumell, Jr. Esq.
Riley and Roumell
720 Ford Building
Detroit, Michigan 48226
Theodore Sachs, Esq.
Rothe, Marston, Mazey, Sachs,
O’Connell, Nunn & Fried, P.C.
1000 Farmer Street
Detroit, Michigan 48226
William M. Saxton, Esq.
Butzel, Long, Gust, Klein & Van Zile
1881 First National Building
Detroit, Michigan 48226
Theodore W. Swift, Esq.
Foster, Lindemer, Swift & Collins, P.C.
900 American Bank & Trust Building
Lansing, Michigan 48933
Douglas H. West, Esq.
Hill, Lewis, Adams, Goodrich & Tait
3700 Penobscot Building
Detroit, Michigan 48226
Charles F. Clippert
IN THE
Supreme Court of tjje Mrnteti States!
O c t o b e r T e r m 1973
No. 73-434
WILLIAM G. MILL1KEN, e t a l „
Petitioners,
vs.
RONALD G. BRADLEY, e t a l .,
Respondents.
No. 73-435
ALLEN PARK PUBLIC SCHOOLS, e t a l .,
vs Petitioners,
RONALD G. BRADLEY, e t a l .,
Respondents.
No. 73-436
THE GROSSE POINTE PUBLIC SCHOOL SYSTEM, e t a l .,
vs Petitioners,
RONALD G. BRADLEY, e t a l .,
___________ Respondents.
MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE
and
BRIEF AMICUS CURIAE IN SUPPORT OF PETITIONERS
SUBMITTED BY AMICI CURIAE, METROPOLITAN
SCHOOL DISTRICTS OF LAWRENCE, WARREN
AND WAYNE TOWNSHIPS, MARION
COUNTY, INDIANA
L e w is C. B ose
W il l ia m M. E van s
Counsel for A m ici Curiae, The M etro
politan School Districts o f Lawrence,
Warren and W ayne Townships, Marion
County, Indiana
Bose M cK in n e y & E v an s
1100 First Federal Building
Indianapolis, Indiana 46204
O f Counsel
Gunthorp-Warren Printing Company, Chicago • 346-1717
IN THE
Supreme Court of tfje dlmteb States
O ctober T erm 1973
No. 73-434
WILLIAM G. MILLIKEN, e t a l .,
vs.
Petitioners,
RONALD G. BRADLEY, e t a l .,
Respondents.
No. 73-435
ALLEN PARK PUBLIC SCHOOLS, e t a l .,
Petitioners,
vs.
RONALD G. BRADLEY, e t a l .,
Respondents.
No. 73-436
THE GROSSE POINTE PUBLIC SCHOOL SYSTEM, e t a l .,
Petitioners,
vs.
RONALD G. BRADLEY, e t a l .,
Respondents.
motion f o r l e a v e t o f il e b r ie f a m ic u s c u r ia e
BY METROPOLITAN SCHOOL DISTRICTS OF
LAWRENCE, WARREN AND WAYNE TOWN
SHIPS, MARION COUNTY, INDIANA
2
The Metropolitan School District of Lawrence Township,
The Metropolitan School District of Warren Township, and
The Metropolitan School District of Wayne Township, all
located in Marion County, Indiana (referred to herein at
“Indiana School Districts” ) respectfully move the Court for
leave to file the attached “Brief Amicus Curiae” in this case
under Rule 42 of this Court.
Indiana School Districts requested and obtained consents to
file a brief amicus curiae from the attorneys for all the
Petitioners in this case, and from the Respondents, Michigan
Education Association and Professional Personnel of Van Dyke.
Indiana School Districts requested consents from the other
Respondents but received no reply.
The interest of the Indiana School Districts arises from the
following facts: They are parties defendant to consolidated
appeals now pending in the United States Court of Appeals for
the Seventh Circuit, U n i t e d S t a t e s o f A m e r i c a a n d B u c k l e y v.
B o a r d o f S c h o o l C o m m i s s i o n e r s o f t h e C i t y o f I n d i a n a p o l i s
(Cause Nos. 73-1968 through 73-1984). These appeals are
taken from an order of the United States District Court for
the Southern District of Indiana, ordering relief against school
districts (including Indiana School Districts) which are con
tiguous and non-contiguous to the Indianapolis school district
to remedy d e j u r e segregation previously found to exist solely
within the Indianapolis school district.
The principal issue now on appeal in the expanded Indi
anapolis case is substantially similar to a principal issue raised in
Detroit case now before this Court: whether desegregation of a
central city in a metropolitan area may be accomplished by
consolidation, or other forms of metropolitan remedy, involving
surrounding contiguous and non-contiguous independent school
corporations, not themselves parties to illegal desegregation.
A summary of the position taken by the District Court in the
Indianapolis case is set out in an excerpt from its December
6, 1973 entry printed in the Appendix to the brief bound with
3
this motion at pages A1 through A10. Accordingly, a
decision in the cases now before this Court may in effect deter
mine the Indianapolis case now on appeal in the Circuit Court
of Appeals.
The Petitioners in the cases before this Court in their
Petitions for Certiorari have properly presented for review the
propriety of an interdistrict remedy. They have framed the
issue in terms of their status as independent municipal corporate
bodies separate and identifiable from Detroit, of the fact that
they did not participate in any discriminatory act towards the
Negro students of Detroit, and of the absence of a finding of
causal connection between the alleged discriminatory acts of
the Detroit Board or the State and the racial makeup of the
non-Detroit defendant school districts.
Indiana School Districts are of the opinion that resolution of
the case requires analysis of the demographic trends responsible
for the minority racial concentration in Detroit as in all major
metropolitan centers, and of the change in the scope and nature
of the Fourteenth Amendment obligation owed by Michigan
and virtually every other state to Negro students living in
metropolitan areas, upon affirmance of the decision of the
Sixth Circuit Court of Appeals. The proposed remedy would
place a burden on the Federal Courts to weigh the necessities
of desegregation or integration against very complex and edu
cationally sensitive problems incident to how school districts in
metropolitan areas are to be organized, reorganized and operated.
Indiana School Districts desire to present a brief amicus curiae
analyzing these problems and analyzing central city desegrega
tion from this standpoint.
Each of the Indiana School Districts is an independent muni
cipal corporation with the right to sue and be sued and is a
political subdivision established by the State of Indiana for the
4
purpose of administering schools within their respective
boundaries. The person signing this motion is the authorized
attorney for such Districts.
Respectfully submitted,
L e w is C . B ose
W il l ia m M . E v an s
C o u n s e l f o r A m i c i C u r i a e , T h e M e t r o
p o l i t a n S c h o o l D i s t r i c t s o f L a w r e n c e ,
W a r r e n a n d W a y n e T o w n s h i p s , M a r i o n
C o u n t y , I n d i a n a
B o se M c K in n e y & E van s
1100 First Federal Building
Indianapolis, Indiana 46204
O f C o u n s e l
TABLE OF CONTENTS
PAGE
Table of Authorities................................................................ i
Interest of A m ici C u r i a e ................................................................. 2
Summary of Argument ......................................................... 2
Argum ent......................................................................................... 7
A. Population and Population Change..................... 7
B. Scope of the R em edy............................................ 13
C. Reorganization: The Substantive Factors.............. 17
D. Affirmance Is Inconsistent with Prior Decisions
of This C ou rt......................................................... 24
Conclusion.............................................................................................. 25
Appendix ................................................................................................ A1
T a b l e o f A u t h o r it ie s
F e d e r a l C a s e s
Bradley v. Milliken, 345 F. Supp. 914 (E. D. Mich.
1972)................................................................................. 15, 16
Bradley v. Milliken (6th Cir., Cause Nos. 72-1809-
72-1814), Slip Opinion, June 12, 1973 ........................ 13, 23
Brown v. Board of Education, 347 U. S. 483 (1954) . . . . 8
Brown v. Board of Education, 349 U. S. 301 (1955) . . . . 8
Calhoun v. Cook, 332 F. Supp. 804 (N. D. Ga. 1971),
a f f ’ d . a n d r e v ’ d . i n p a r i ; 451 F. 2d 583 (5th Cir. 1972) 23
Goss v. Bd. of Ed. of Knoxville, 482 F. 2d 1044, (6th
Cir. 1973) ........................................ .................................. 23
Green v. County School Board, 391 U. S. 430 (1968) . . . 8
11
Haney v. Co. Bd. of Ed. of Seiver County, 410 F. 2d 920
(8th Cir. 1969) ................................. * ........................... 24
Kelley v. Metro Bd. of Ed. of Nashville, Tenn., 463 F. 2d
732, 741 (6th Cir. 1972), cert. den. 409 U. S, 1001 .. 23
Keyes v. School District No. 1, Denver, C o lo .,........U. S.
........ , 41 U. S. L. W. 5002 (1 9 7 3 ) .................................8,13
Lee v. Macon Co. Bd. of Ed., 448 F. 2d 746 (5th Cir.
1 9 7 1 ) ................................................................................... 24
San Antonio Independent Schl. Dist. v. Rodriguez,
U. S. ..... , 41 U. S. L. W. 4407 (1 9 7 3 ) ...................... 15, 24
Spencer v. Kugler, 326 F. Supp. 1235 (D. N. J. 1971),
a f f ’ d . 404 U. S. 1027 (1972) ........................................ 24
Swann v. Charlotte-Mecklenburg Board of Education, 402
U. S. 1 (1971) ...................................................................8,24
Wright v. Council of Emporia, 407 U. S. 451 (1 9 7 2 )___ 24
S t a t e C a s e s
Co. Dept, of Pub. Welfare v. Potthoff, 220 Ind. 574, 581,
44 N. E. 2d 494 (1942) ................................................ 13
Southern Ry. Co. v. Harpe, 223 Ind. 124, 132, 58 N. E.
2d 346 (1944) .................................................................. 13
Woemer v. City of Indpls., 242 Ind. 253, 177 N. E. 2d
34 (1961) ........................................................................... 13
G o v e r n m e n t P u b l i c a t i o n s
Bureau of the Census, General Demographic Trends for
Metropolitan Areas, 1960 to 1970, Rpt. PHC(2)-1,
page 3 (1971) ....................................................... 8, 9, 11, 12
Bureau of the Census, Social and Economic Characteristics
of the Population in Metropolitan and Non-Metropolitan
Areas: 1970 and 1960, Rpt. P23 No. 37 (1971) . . . . 7, 8,9
Bureau of the Census, Public School Systems in 1971-72
(herein School Systems 1971-2), Table 2 ....................13, 17
Bureau of the Census, The Social and Economic Status of
the Black Population in the United States, 1972, Rpt.
P-23 No. 26, p. 1 (1973) ............... .............................. 9
Bureau of the Census, Birth Expectations of American
Wives June 1973, Rpt. P-20, No. 254, Table 1 ........... 9
H. E. W., Dept, of Educational Statistics 1971 ............... 17
H. E. W. Education Directory 1972-73 ............................ 19
Statistical Abstract of the United States— 1972 ............... A -ll
A r t i c l e s
American Association of School Administrators, School
District Reorganization (1958), pp. 7 0 -7 1 .................... 15
Bundy Report— See article below: Mayor’s Advisory Panel
on Decentralization of the New York Schools, Recon
nection for Learning— A Community School System For
New York City, McGeorge Bundy, Chairman (Freder
ick A. Praeger, Publishers, 1969) .........................18, 19, 20
Drucker, The Age of Discontinuity (Harper & Row 1968) 10
Hickey, Optimum School District Size (Eric Clearinghouse
on Educational Administration, University of Oregon
1969), p. 25 ........................................................................ 18
Levin, Financing Schools in a Metropolitan Context in
Metropolitan School Organization: Basic Problems and
Patterns (McCutcheon Publishing Corporation 1973),
p. 39 .............................................................................................1 9 , 2 2
Mayor’s Advisory Panel on Decentralization of the New
York Schools, Reconnection for Learning— A Com
munity School System For New York City, McGeorge
Bundy, Chairman (Frederick A. Praeger, Publishers,
1969) ....................................................................... 18,19,20
iii
IV
Polley, “Decentralization Within Urban School Systems,”
in Education in Urban Society, (Dodd, Mead, and Co.,
1962) pp. 122-123, cited in the Bundy Report, p. 8 . . . 20
Rebell, New York’s Decentralization Law: Two and a Half
Years Later, 2 Journal of Law and Education (1973)
(herein Rebell) ............................................................... 21
Taeuber, Negroes in Cities (Aldine Publishing Company
1965) (herein Taeuber) ...............................................10,11
Wall Street Journal, September 7, 1972, p. 1, col. 1
“Who’s in Charge: Public-Employe Unions Press for
Policy Role; States and Cities Balk” ............................ 15
Zimvet, Decentralization and School Effectiveness— A Case
Study of the 1969 Decentralization Law in New York
City (Teachers College Press 1973) . . . ...................... 21
IN TH E
Supreme Court of tfje U n i t e d S t a t e s
October T erm 1973
No. 73-434
WILLIAM G. MXLLIKEN, e t a l .,
vs.
Petitioners,
RONALD G. BRADLEY, e t a l .,
Respondents.
No. 73-435
ALLEN PARK PUBLIC SCHOOLS, e t a l .,
Petitioners,
vs.
RONALD G. BRADLEY, e t a l .,
Respondents.
No. 73-436
THE GROSSE POINTE PUBL IC SCHOOL SYSTEM, e t a l .,
vs.
Petitioners,
RONALD G. BRADLEY, e t a l .,
Respondents.
BRIEF AND APPENDIX AMICUS CURIAE IN SUPPORT
OF PETITIONERS, SUBMITTED BY AM ICI CURIAE,
METROPOLITAN SCHOOL DISTRICTS OF
LAWRENCE, W ARREN AND W AYNE
TOWNSHIPS, M ARION COUNTY,
INDIANA
2
This brief is filed pursuant to Rule 42 of the United States
Supreme Court. A motion for leave to file a brief amicus
curiae has been timely filed pursuant to Rule 42(3), and each
of the amici curiae is a political subdivision for educational
purposes of the State of Indiana.
INTEREST OE AMICI CURIAE
Amici Curiae are parties defendant to consolidated appeals
now pending in the United States Court of Appeals for the
Seventh Circuit, U n i t e d S t a t e s o f A m e r i c a a n d B u c k l e y v.
B o a r d o f S c h o o l C o m m i s s i o n e r s o f t h e C i t y o f I n d i a n a p o l i s ,
(Cause Nos. 73-1968 through 73-1984). These appeals are
taken from an order of the United States District Court for
the Southern District of Indiana, ordering relief against school
districts (including Amici Curiae) which are contiguous and
non-contiguous to the Indianapolis school district, to remedy
d e j u r e segregation previously found to exist solely within the
Indianapolis school district.
The principal issue now on appeal in the Indianapolis case
is substantially similar to a principal issue in the cases now be
fore this Court: Do state authorities have an obligation to
Negro and other minority ethnic group children to order a
reorganization of school governments and school management
in a metropolitan area to effect a maximum and stable racial
mix, where by reason of demographic trends common to the
entire United States, minority race children are now or may
become a majority in a central city district but are a minority
in a total metropolitan area.
SUMMARY OF THE ARGUMENT
Appellees now ask this Court for an expansion in kind and
degree of the obligations owed by state authorities under the
Fourteenth Amendment to Negro children and to other ethnic
3
groups, where they now are or may become a majority of the
population or enrollment in a central city school district, but
a minority in a total metropolitan area. Appellees assert that
the states have a Fourteenth Amendment obligation to re
organize local school governments and school management to
effect a maximum racial mix.
The decisions of this Court to date have dealt principally
with single school systems— do they retain vestiges of dualism,
have they maintained a dual school system in the absence of
statute, how shall they be desegregated? Even when all school
systems become unitary under these decisions, however, mixing
of blacks and whites to the degree demanded by Appellees
cannot be attained, given the structure of existing municipal
corporations.
Population growth, migration patterns and residential segre
gation have resulted in the central city of many urban areas
predominantly or heavily black, surrounded by urban areas
in the suburbs predominantly white. Where once America’s
population was predominantly rural it is now predominantly
urban. According to the 1970 U. S. Census figures, urban
areas throughout the country, including both central city and
suburban areas, contain 65% of the total, 64% of the white,
and 70.7% of the Negro population. Further, population has
had a natural increase from 131 million in 1940 to 203 million
in 1970. With limited availability of existing lands in central
cities, population has expanded substantially in the suburbs,
where there are now more people than in central cities. Thirty-
six percent of the total population of the United States (72.8
million people) live in suburbs, while 29% of the total popula
tion (58.6 million people) live in central cities. Negroes, how
ever, have migrated primarily to central cities where they con
stitute 21% of the population and where 58% of all the
country’s Negroes live. In the suburbs, by contrast, they con
tinue to migrate and increase but constitute only 5% of the
total suburban population. These concentrations are the product
4
of trends in migration and natural increase in population. The
trends vary from decade to decade, from region to region and
from city to city, influenced by changes in the birthrate, changes
in job opportunities, general economic conditions and avail
ability and condition of housing. The central cities experiencing
the greatest in-migration and having the highest concentra
tion of blacks are generally the Nation’s largest, such as New
York, Chicago, Los Angeles, San Francisco-Oakland and
Detroit. The continuing concentration has occurred, however,
to a greater or lesser degree in all others. These migrations
constitute some of the largest migrations in world history.
Further, substantial research shows that for all regions of
the country, all types of cities, large or small, central city or
suburban, substantial residential separation exists between Ne
groes and whites— a phenomenon that occurs regardless of the
character of laws and policies, and regardless of the extent of
other forms of separation or discrimination.
Since desegregation decisions applying to single school systems
neither touch nor counteract these trends, Appellees and judges
in the frustration of trying to attain a substantial and stable inte
gration of blacks and whites in school urge this Court to adopt
an expanded and deceptively simple version of the states’ Four
teenth Amendment obligation owed Negro children. If there are
insufficient whites within a single system so that the system is
identifiably black in comparison with its neighbors, the system
must be expanded, or expanded and then reorganized in smaller
areas, so that each resulting school district in a metropolitan area
has no greater percentage Negro than any other. After this
first step the expanded or reorganized districts will then be de
segregated within the command and guidelines of B r o w n , G r e e n ,
S w a n n and K e y e s } 1
1. B r o w n V . B o a r d o f E d u c a t i o n , 347 U. S. 483 (1954)
(Brown I); B r o w n v. B o a r d o f E d u c a t i o n , 349 U. S. 301 (1955)
(Brown II); G r e e n v. C o u n t y S c h o o l B o a r d , 391 U. S. 430 (1968);
S w a n n v. C h a r l o t t e - M e c k l e n b u r g B o a r d o f E d u c a t i o n , 402 U. S. 1
(1971); K e y e s v. S c h o o l D i s t r i c t N o . 1 , D e n v e r , C o l o . , . . . . U. S.
.. . ., 41 U. S. L. W. 5002 (1973).
5
The suggested doctrine is, however, highly complex and in
volves the Court in fundamental questions of local and state
educational and governmental policy— decisions which this
Court has never considered appropriate for judicial action. The
impracticability and undesirability of implicating the judiciary in
balancing integrative necessities against the educational necessi
ties of alternate local educational organization— the types, size,
organization and powers of governmental entities which the
states create to carry on education— can best be demonstrated
by the vastness of the area and the scope and detail of the
problems involved.
As to the size of the problem, 4,896 of the country’s 16,859
school systems are in metropolitan areas. They enroll 32 million
of the Nation’s 48 million school children.
Further, each reorganization involves detailed problems in
fluencing the kind of education that can or will be delivered,
problems with highly divergent solutions. The following are
representative: the size of the area to be desegregated in terms
of numbers and proportions of Negro and white students; the
size and proportion of Negro and white pupils in each unit;
whether the area will be administered as a unit or broken down
into smaller units; whether any unit will have sub-districts and
the kinds and amount of authority to be given to each sub-district
over such matters as curriculum, budget, personnel, union nego
tiations; how many members will be on the governing bodies of
school boards or sub-boards; how the board members are to be
selected— by election or appointment; if by appointment by
whom the appointment is to be made; what relationship, if any,
is to be retained between local school and civil government; how
much tax base be assigned to each proposed unit of government;
what shall be done with existing union contracts; will such con
tracts be negotiated in the future on a local, metropolitan or
statewide basis; where, will, or may, teachers be transferred or
assigned in the area; will curriculum or other educational stand-
ards or tax practices be uniform throughout the area; if so, by
6
whom will they be set. Extreme size itself is currently one of
the most criticized aspects of school administration.
Finally, the duty to reorganize school districts would apparent
ly be an on-going duty since its necessity is now urged on the
basis of the identifiably black nature of central city school stu
dent bodies and the constitutional authority of the states to re
organize local units of government. Surely racial patterns are
not now fixed for all time but will continue to change.
Neither the prior pronouncements of this Court relating to
constitutionally required equality of treatment nor the in
ternal logic of these pronouncements, suggest or require that the
separate school systems be unidentifiable by the race of their
students. The pronouncement of such a doctrine would consti
tute a greater change in the body politic than the change from
“separate but equal” to “separate is inherently unequal” and
freedom of choice” following B r o w n I and B r o w n I I , or from
the latter to the “affirmative duty” of G r e e n , S w a n n and K e y e s .
Amici urge that thus redefining a duty to involve the Federal
Courts in weighing a necessity of integration against subjective
determinations of educational management, throughout the
country, with unpredictable and possibly counter-productive re
sults, is unwarranted, and that the decision of the Sixth Circuit
Court of Appeals should be reversed.
7
ARGUMENT.
A. Population and Population Change.
The theory of Appellees’ case has implications extending far
beyond the Detroit area with its several million people. It is
based on changes in the concentrations and racial makeup of
population and must be evaluated in the light of nationwide
population trends. For census purposes, the country has been
broken down into metropolitan areas inside central cities, met
ropolitan areas outside central cities generally called suburbs,
and non-metropolitan areas.
The most significant facts about America’s population are
its continued growth, that it is highly and increasingly urban,
and that its increased growth is predominantly in the suburbs.
As of the 1970 census, the distribution of population between
the major types of population areas was as follows:2
Area
Number
(in millions) Percent
Metropolitan Areas:
Inside Central Cities 58,635 29.0
Suburbs 72,883 36.0
Non-metropolitan Areas 71,015 35.1
Total 202,534 100.0
This represented an increase of 28 million persons in the ten-
year period beginning in 1960. Of this increase, 20 million
were in metropolitan areas; and only 4 million in non-metro
politan areas. Of the 20 million ten-year increase in the met
ropolitan areas, 16.8 million were in suburban areas. Even
2. Bureau of the Census, Social and Economic Characteristics
of the Population in Metropolitan and Non-Metropolitan Areas:
1970 and 1960, Rpt. P23 No. 37 (1971) (herein Pop. Rpt. 23
No. 37), Table A. .........................
8
though extensive, these changes represent a slowing of the rate
of increase for both central city and suburban population in
crease, which were twice as high in the preceding 10 years
beginning in 1950.3
These trends are different for whites and blacks. Whites in
the ten-year period between 1960 and 1970 decreased in num
ber and percent in central cities, increased slightly in non-
metropolitan areas, and increased substantially in suburban
areas. Blacks, on the other hand, decreased in non-metropoli
tan areas, increased substantially in suburban areas, but in
creased in an even greater amount both in numbers and percent
in central cities,4 as shown by the following chart:5
1970 1960 Change 1960-1970
Race and
Residence Number*
Percent
Distri
bution Number*
Percent
Distri
bution Number* Percent
WHITE
Metropolitan:
Inside Central Cities 45,088 25.4 47,638 30.0 — 2,550 — 5.4
Suburban 68,539 38.6 51,793 32.6 16,746 32.3
Non-metropolitan 63,802 36.0 59,267 37.3 4,535 7.7
Total— United States 177,429 100.0 158,698 100.0 18,731 11.8
NEGRO
Metropolitan:
Inside Central Cities 12,587 55.2 9,480 51.5 3,107 32.8
Suburban 3,536 15.5 2,430 13.2 1,106 45.5
Non-metropolitan 6,685 29.3 6,481 35.2 204 3.1
Total— United States 22,807 100.0 18,391 100.0 4,416 24.0
* In Millions
Within metropolitan areas of every region, including the
south, whites are found in the largest numbers in the suburbs
while blacks are concentrated in central cities; and in each
3. Bureau of the Census, General Demographic Trends for
Metropolitan Areas, 1960 to 1970, Rpt. PHC(2)-1, page 3 (1971)
(herein Demo. Rpt. PHC(2)-1).
4. Id. at pp. 4-6.
5. Pop, Rpt. 23 No. 37, s u p r a n. 2, Table A.
9
region of the country, blacks now comprise a higher percentage
of the central city population than they did a decade ago.6
A significant factor in attempting a nationwide policy on
restructuring local government, if it be done, is some under
standing of the underlying causes of population change. One
of these is the birthrate. For whites, the birthrate has fallen
in the last decade and continues to fall moderately. For Negroes
the birthrate has fallen later but since 1967 more precipitately,
but is still above the level of white births.7 This has been re
flected in falling elementary school enrollments which in future
years will mean reductions in both elementary and upper grade
enrollments.8
An additional factor is the relative ages of white and black
women of childbearing age. For the country as a whole a
greater percentage of the Negro population than of the white
is of childbearing age. This, however, varies from region to
region. The north central region has a relatively lower white
age group than the northeast region, while the white popula
tion of the south and west are more youthful than either.9
Further, aside from the factors of natural increase, popula
tion distribution depends on the factors influencing in-migration
to one area and out-migration from another. Migration de
pends among other things on the relative lack of employment
opportunities in the place people live compared with the greater
6. Id. at p. 2; Demo. Rpt. PHC(2)-1 at pp. 4-5; Bureau of the
Census, The Social and Economic Status of the Black Population
in the United States, 1972, Rpt. P-23 No. 26, p. 1 (1973) (herein
Bl. Pop. Rpt. P-23, No. 26). A chart further evidence this fact
assembled from data in Statistical Abstract of the United States—
1972 is set out in the Appendix to this brief (herein the Br. App.)
at p. A ll.
7. Bl. Pop. Rpt. P-23 No. 26, s u p r a n. 6, Table 59 reproduced
in Br. App. p. A 12; Bureau of the Census, Birth Expectations of
American Wives June 1973, Rpt. P-20, No. 254, Table 1, repro
duced in part in Br. App. at p. A 13.
8. Bl. Pop. Rpt., s u p r a n. 6, Table 46, reproduced in Br. App.
at p. A14.
9. Demo. Rpt. PHC(2)-1, s u p r a n. 3, pp. 7, 9, 10, 12.
1 0
opportunities in the areas into which they move, and the avail
ability of housing in other areas, either public or private. The
change for employment reasons is illustrated by the northward
movement of blacks from cotton producing jobs during World
War I due to the destruction of the cotton crop by the boll
weevil and the improvement in farm machinery, coupled with
the increase in wartime employment opportunities in the north.
Further illustrative, is the slowing of this movement during the
depression of the thirties, and its increase again during and
after World War II.10 11 The availability of housing, in turn, is
affected by major economic factors. Negroes did not move
from the inner part of the central city during World War II
because new housing was non-existent. The flow of Negroes to
the outer areas of central cities and to the suburbs, and of
the whites to the suburbs, was due in large part to the destruc
tion of central city housing by public works or private develop
ment, its deterioration in older areas, and to the vast expansion
of housing in the suburbs commencing in the fifties. The con
tinued migration of both whites and blacks to particular met
ropolitan areas in the sixties and beyond is a product of
continuing better job opportunities.11
In recent years, migration has not been characterized entirely
by migrations from rural to metropolitan, but also by migrations
from one metropolitan area to another, migrations which “flow
in complex and interlocking channels.”12
The only certainties in the area of demographics are the
variations within a general theme, the multiple factors which
govern change, and the unpredictability of percentages, ratios
and numbers of population and school enrollment within any
particular area.
10. Drucker, The Age of Discontinuity (Harper & Row 1968),
p. 227. “No city in history has ever been able to absorb an influx
of such magnitude as the American cities have had to absorb since
the end of World War II.”
11. Taeuber, Negroes in Cities (Aldine Publishing Company
1965) (herein Taeuber) pp. 12-3, 125, 152-3, 162-165.
12. Taeuber, at pp. 127-8.
1 1
The variations are at least as significant as the overall pattern
For example, in the decade of the sixties: in the northeast, popu
lation growth was due to natural increase, the substantial white
out-migration being balanced in part by in-migration of other
races, there being an increase in white non-metropolitan popu
lation;13 in the north central region, there was heavier out
migration of whites from non-metropolitan areas, with roughly
balancing out-migration of whites from, and Negroes into,
metropolitan areas;14 in the south there was, by contrast, heavy
in-migration of whites to metropolitan areas, lighter in-migration
of other races, moderate out-migration of whites and heavy out
migration of Negroes from non-metropolitan areas;15 in the west,
net in-migration to metropolitan areas was highest in percent in
the Nation, consisting of 2.4 million whites and 650,000 of
other races, with California the greatest attractor of migrants
in the Nation, gaining 2,000,000 by in-migration.16
Cities reveal the same variation. For example, blacks ex
panded in all suburban areas but without, however, an over
all percentage increase. Virtually all the increase resulted
from in-migration in the suburbs and not from any natural
increase. The suburban areas of Washington, D. C. and St.
Louis had large Negro percentage gains; Detroit and Pittsburgh
virtually none, and Baltimore suburbs experienced a Negro per
centage loss.17
Central cities which showed the greatest percentage loss in
white population were among the 12 largest in the country, but
even here there was variation. New York, Chicago and Detroit
alone accounted for more than half of the loss in numbers.
Washington, D. C., St. Louis, Detroit and Cleveland had the
highest rates of loss, with Chicago and New York showing rel-
13. Demo. Rpt. PHC(2)-1, s u p r a n. 3, p. 7.
14. Id at p. 9.
15. Id. at p. 10.
16. Id. at p. 11.
17. Id. at p. 14.
12
atively moderate rates of loss, and Los Angeles experiencing a
white gain in population. Cities between 2 million and 500,000
had a small aggregate gain in numbers of whites, but about one-
half of these cities lost white population while the other half
gained, with great variations between them.18 The same varia
tion can be applied to Negro gains in numbers as well as white
losses. The figures can be further broken down to show whether
the gains or losses were occasioned by net in-migration, net
out-migration, or natural population increase.
Finally, one researcher has found that residential separation
between blacks and whites is a condition existing in all cities in
all regions of the country regardless of the character of local
laws and policies, and regardless of the extent of other forms of
segregation and discrimination.19
There are no reliable studies suggesting that central city
school segregation was a causal factor in these vast demographic
changes or that the present trends are consistent throughout
the country or can be accurate predictors of what will occur
in the future in any particular metropolitan area or city.
If demographic changes in school enrollments make a case
for judically supervised school reorganization, the change will
be national in scope and can reasonably be expected to affect
many of the 4,896 school corporations in metropolitan areas
18. Id. at p. 13.
19. Taeuber, s u p r a n. 10, pp. 35-6.
“No further analysis is necessary to reach some broad
generalizations concerning racial segregation: In the urban
United States, there is a very high degree of segregation of the
residences of whites and Negroes. This is true for cities in all
regions of the country and for all types of cities—large and
small, industrial and commercial, metropolitan and suburban.
It is true whether there are hundreds of thousands of Negro
residents, or only a few thousand. Residential segregation pre
vails regardless of the relative economic status of the white and
Negro residents. It occurs regardless of the character of local
laws and policies, and regardless of the extent of other forms
of segregation or discrimination.”
13
which educate 32 million of the Nation’s 48 million school
children.20
B. Scope of the Remedy.
Appelles’ justification for a judical order to the State of
Michigan to reorganize its school corporations is based on the
segregation in the Detroit schools, its predominant (68.6% )
Negro enrollment coupled with the predominantly white enroll
ment of surrounding school corporations,21 the technical nature
of local school officials as “state officials” charged with local re
sponsibilities, and the constitutional right of the State to create,
dissolve, regulate and grant powers to, local school corporations.
This chain of logic disregards the fact that while Michigan, in
common with other states, has plenary power over the entities
by which education is carried out, it has chosen to carry out edu
cation through local independent municipal corporations pri
marily responsible to a local constituency.22
The question is not whether the State has the right to control
these matters, but whether the Fourteenth Amendment requires
a judicial supervision over the character of the entities by which
educational matters be carried out for the purpose of achieving
a greater mix of Negroes and whites and a balancing of integra
tive necessities against the multitudinous educational considera
tions involved in a reorganization of school corporations. An
20. Bureau of the Census, Public School Systems in 1971-72
(herein School Systems 1971-2), Table 2.
21. B r a d l e y v. M i l l i k e n (6th Cir., Cause Nos. 72-1809-72-
1814) Slip Opinion, June 12, 1973, pp. 53, 63-4.
22. Parenthetically most states also have plenary authority over
all local governmental subdivisions. In Indiana this is true for
counties ( C o . D e p t , o f P u b . W e l f a r e v. P o t t h o f f , 220 Ind. 574, 58!,
44 N, E. 2d 494 (1942) and for civil cities and towns ( W o e r n e r v.
C i t y o f I n d p l s . , 242 Ind. 253, 266, 177 N. E. 2d 34 (1961)),
which may be abolished, consolidated or combined or eliminated by
statute, and which have only those powers delegated by statute
( S o u t h e r n R y . C o . v. H a r p e , 223 Ind. 124, 132, 58 N. E. 2d 346
(1944)).
14
answer requires some understanding of the broad range of edu
cational matters now determined locally.
The framework for the performance of educational services
throughout the country is described by this Court in S a n A n t o n i o
I n d e p e n d e n t S c h o o l D i s t r i c t v. R o d r i q u e z in substantial detail,
but also in general terms as follows:23
“Although policy-decision making and supervision in cer
tain areas are reserved to the State, the day-to-day authority
over the ‘management and control’ of all public elementary
schools is squarely placed on the local school boards.”
This is typically and particularly true throughout the country
in broad areas of educational policy, including among other
things, curriculum and school programs, hiring, firing and pro
motion of personnel, fixing the terms of employment, pupil
assignments, school construction and budget. With respect to
curriculum, while a multiple choice of textbooks and minimum
graduation requirements are generally certified by the state, local
school districts have tremendous latitude. They determine the
subjects taught, the methods by which they are taught, the
amount of time spent per day in different study areas, pupil
assignment, grade structure of particular schools, the use of
supplemental material, summer school programs, the type and
extent of extracurricular activities, whether to provide schools
for specialized instruction, whether to adopt such innovations as
undifferentiated grade schools, “hands on” vocational programs,
and learning disability programs, and where, how and whether,
to build facilities for those activities.
With respect to personnel, while the states enforce minimum
certification requirements, the great bulk of personnel decisions
— who is hired, where they are to be assigned, internal adminis
tration, orgainization of departments, the conditions of employ
ment, the right of promotion and transfer— are controlled local
ly, particularly in the larger districts, the latter matters are
governed by highly sophisticated union contracts negotiated be-
23............U. S........... , 41 U. S. L. W. 4422, n. 108.
15
tween local districts and unions, where the scope of negotiations
becomes a confrontation between board and union over general
school policy.24 With respect to pupil policies, typically, a local
school district will control where and to what schools pupils are
assigned, whether they will be transferred, the prerequisites to
participation in given programs and the control and discipline of
students. Budget, another local function, determines how much
of the available funds a district will expend in what areas. As
has been frequently noted, control of fiscal policy is control of
educational policy.25
The extent to which Appellees would inject the judiciary into
this local process is evidenced by the District Courts by the
“Ruling on Desegregation Area and Order for Development of
a Plan of Desegregation” in this case.26 While this order was
vacated by the Sixth Circuit order pending state legislative
response, it was not reversed; and the scope of this order in
dicates the necessary scope of the response. It is to be
measured by the interplay of only two factors, “maximum
feasible desegregation” and the “elimination of racially identifi
able schools” .27 With respect to the area of desegregation to
24. See, Wall Stree't Journal, September 7, 1972, p. 1, col. 1
“Who’s in Charge: Public-Employe Unions Press for Policy Role;
States and Cities Balk” :
“The UFT’s president, Albert Shanker, freely concedes that
some of the demands had policy implications. But, he insists,
‘what we’re primarily interested in is improving the teachers’
working conditions.’ It just so happens, he adds, that ‘there is
hardly anything which cannot simultaneously be viewed as a
working condition and a matter of educational policy.’
The issue of class size is one of Mr. Shanker’s favorite
examples. ‘You can approach it from the point of view of
what’s best for the children or as a question of allocating
resources,’ he says. ‘But, obviously, handling a lot of kids_ is
more difficult than handling just a few. And in that way, it’s
most certainly a working condition.’ ”
25. American Association of School Administrators, School
District Reorganization (1958), pp. 70-71.
26. 345 F. Supp. 914 (E. D. Mich. 1972).
27. Id. at p. 925, n. 9.
16
which the order applied, the Court had before it the following
proposals:28
Proposal Number of
Districts
Number of
Pupils
% Black
Total Metropolitan
Area 86 1,000,000 20%
Detroit Board 69 850,000 25%
CCBE 62 770,000 25.4%
Plaintiffs 54 780,000 25.3%
State 36 555,000 36%
The Court chose a modified form of Plaintiff’s proposal.
With respect to the organization of local governmental entities
necessary to effect the order, the following parts are significant:29
J. Pending further orders of the court, existing school
district and regional boundaries and school governance
arrangements will be maintained and continued, except
to the extent necessary to effect pupil and faculty desegrega
tion as set forth herein; provided, however, that existing
administrative, financial, contractual, property and govern
ance arrangements shall be examined, and recommenda
tions for their temporary and permanent retention or
modification shall be made, in light of the need to operate
an effectively desegregated system of schools (345 F.
Supp. at p. 919.)
* * * * *
70. The plans submitted by the State Board, the
Detroit Board, and the intervening defendants Magdowski,
et al., discuss generally possible governance, finance, and
administrative arrangements which may be appropriate for
operation of an interim or final plan of desegregation.
Without parsing in detail the interesting, and sometimes
sensible, concepts introduced by each plan, it is sufficient to
note that each contemplates overlaying some broad educa-
28. Id.
29. The District Court Order in the Indianapolis case was com
parable in scope, although ameliorated in detail. See Br. App.,
pages Al through A 10.
17
tional authority over the area, creating or using some
regional arrangement (with continued use or eventual re
drawing of existing districts), and considerable input at the
individual school level. The court has made no decision in
this regard and will consider the matter at a subsequent
hearing. (345 F. Supp. at p. 933.)
C- Reorganization: The Substantive Factors.
A local school district’s organization is a major determinate
of whether it can deliver good education. The most crucial
aspect is its size: too small, it lacks the pupils and resources
for a broad range of offerings and services; too large, it be
comes unresponsive to its constituents, inflexible, inefficient and
unable to innovate on a broad scale. Since the early 1940’s,
extremely small size has been increasingly corrected by con
solidation.30 No good remedy has been found for bigness (as
will be shown below); but there has been no tendency to aggre
gate schools further into extremely large units. Distribution of
schools in the United States by enrollment as of 1969 was as
follows:31
School Districts with pupil
Number Percent
of Total
Enrollments of 25,000 & over 180 1.001%
10,000 to 24,000 538 2.992
5,000 to 9,999 1,096 6.095
2,500 to 4,999 2,026 11.268
300 to 2,499 7,911 43.998
under 300 6,229 34.644
The classic examination of large school system failure is the
study conducted by the Mayor’s Advisory Panel on Decentraliza
tion of New York Schools, better known as the “Bundy Report” .
This report chronicled and studied the continuing decline in
30. School Systems 1971-72, s u p r a n. 20, pp. 1-2.
31. H. E. W., Dept, of Educational Statistics 1971.
1 8
student performance and increasing cost of the New York
City system. It pinpointed the major cause as too large a size.32
No school system is free of shortcomings, but in New
York the malaise of parents is heightened by their in
creasing inability to obtain redress or response to their
concerns. Teachers and administrators, too, are caught in
a system that has grown so complex and stiff as to over
whelm its human and social purpose.
Whether the reaction is quiet frustration or vocal pro
test, the result throughout the city is disillusionment with
an institution that should be offering hope and promise.
No parent, no teacher, no school administrator, no citizen,
no business or industry should rest easy while this erosion
continues.
The causes of the decline are as diverse and complex as
the school system itself and the city that created it. But
one critical fact is that the bulk and complexity of the
system have gravely weakened the ability to act of all
concerned—-teachers, parents, supervisors, the Board of
Education, and local school boards.
The system had become one in which many interest groups
could assert a negative and self-serving power but in which
none could effectively innovate.33
Neglect of this principle (i.e., the instrumental value of
power as opposed to its value as a final goal) in our
judgment, is responsible for much of what is wrong in
the New York City Schools today. We find that the school
system is heavily encumbered with constraints and limita
tions which are the result of efforts by one group to assert
a negative and self-serving power against someone else.
Historically these efforts have had ample justification, each
32. Mayors Advisory Panel on Decentralization, of the New
York Schools, Reconnection for Learning— A Community School
System for New York City, McGeorge Bundy, Chairman (Fred
erick A. Praeger, Publishers, 1969) (herein the “Bundy Report)
pp. 5-6.
33. Reprinted in Hickey, Optimum School District Size (Eric
Clearinghouse on Educational Administration, University o f O regon
1969), p. 25.
19
in its time. To fend off the spoils system, to protect
teachers from autocratic superiors, to ensure professional
standards, or for dozens of other reasons, interest groups
have naturally fought for protective rules. But as they
operate today these constraints bid fair to strangle the
system in its own checks and balances, so that New
Yorkers will find themselves, in the next decade as in the
last, paying more and more for less and less effective
public education (p. 1).
Size, itself, has been recognized in many studies as responsible
for many of the failures of large city schools, such studies
making it increasingly clear that good educational decisions
are made at a level that is close to the individual child.34 35
At the same time, it is peculiar that, just as the dis
advantages of large school districts are being recognized,
the metropolitan approach would increase the size of the
overall administrative unit. The cumbersome and highly
bureaucratized behavior of the large-city school districts is
responsible for many of the failures of the city schools.
Increasingly, it appears that good educational decisions
are made at a level that is close to the individual child
(see, for example, Fantini [1970], pp. 40-75). Despite
this recognition, the movement to metropolitan school dis
tricts would centralize further the level of decision making
and buttress that centralization with an even greater op
portunity for bureaucratic mindlessness.
There have been many studies on the optimum size of a
school district. Generally recommended optimum sizes vary
with the purpose for which the size is picked. Studies do not,
however, suggest a school district size even approaching Detroit’s
size.38
34. Henry M. Levin, Financing Schools in a Metropolitan Con
text in Metropolitan School Organization: Basic Problems and
Patterns (McCutcheon Publishing Corporation 1973), p. 39.
35. Detroit is the sixth largest school district in the United
States with an enrollment of 266,193 in the 1971-1972 school year.
H. E. W. Education Directory 1972-73, p. 255. For a table sum
marizing optimum for varying purposes, see Br. App. A15.
2 0
The remedy proposed by the Bundy Report was based on
the following premise:38
The concept of local control of education is at the heart
of the American public school system. Laymen deter
mine the goals of public education and the policies calcu
lated to achieve them.
The report recommended decentralizing the system into
component units with substantial and real control over educa
tional policy. It proposed local community school districts of
from 12 to 40 thousand pupils with some policy established
on a city-wide basis but with each district primarily governed
by community school boards. These would establish procedures
and channels for the closest possible consultation with parents,
community residents and teachers, preserving all existing tenure
rights of teachers but thereafter awarding tenure selection to
the community district.36 37 38
This type of decentralization is of a different character from
decentralization of administrative functions where all ultimate
control is retained by central authorities. The results of the
latter have been characterized as follows:38
When authority is decentralized, the person granted local
power remains responsible to the same group of officials
that delegated the authority. . . . Because local officials
are responsible to higher authority, rather than to those
they serve, their clients have no direct means of influencing
policy or action; even more important, perhaps, the official
loses the freedom of action which true responsibility would
confer on him. . . . What now exists . . . in most large
cities is authority without responsibility.
The decentralization recommended by the Bundy Report has
been a failure since it did not reckon with the unwillingness
36. Bundy Report, p. 6.
37. Id. at pp. XIII and XIV.
38. John W. Polley, “Decentralization Within Urban School
Systems,” in Education in Urban Society (Dodd, Mead, and Co.,
1962), pp. 122-123, cited in the Bundy Report, p. 8.
21
of those who had power within the system— teachers, administra
tors and central board— to relinquish it. The range of failure,
from the compromise enabling legislation through its subsequent
implementation, has been well chronicled.39 Curriculum reform
could not be effected because of central board control of
policies and since central board budgetary restraints prevented
local boards from hiring curriculum specialists.40 Budget sub
missions by local boards were for informational purposes only,
and local funds were allocated by fairly rigid formulas.41 With
respect to personnel, the relatively large grants of power were
frustrated by the power retained in the Board of Examiners to
appoint, assign and discharge teachers. Teachers retained the
right to transfer from one district in the system to another and
were unresponsive to the needs of the constituency they served.42
Finally, the process of collective bargaining remained with the
central board. Local boards had three representatives who could
meet with the negotiating committee but who were not part of
the “management team” .43 The quantitative results in student
performance continued downward after decentralization, as it
had before.44
39. Rebell, New York’s Decentralization Law: Two and a
Half Years Later, 2 Journal of Law and Education (1973) (herein
Rebell); Zimvet, Decentralization and School Effectiveness—A Case
Study of the 1969 Decentralization Law in New York City
(Teachers College Press 1973) (herein Zimvet).
40. Rebell, pp. 7-12; Zimvet, p. 5.
41. Rebell, pp. 13-14.
42. Zimvet, pp. 5-6, 127-128.
“Much of the conflict between the professional staff and
the community can be traced to these two sets of criteria. In
terms of what a teacher should be, the professional staff and
the unions representing them insist that he must pass certain
tests, possess particular credentials, and perform his assigned
duties in accordance with accepted procedures and practices.
Community groups, on the other hand, especially those con
cerned with the appointment of more black and Puerto Rican
teachers and supervisors, insist that traditional credentials are
not as important as is the ability of the teacher or supervisor to
relate to children, to parents, and to the community.”
43. Rebell, pp. 21-30.
44. Zimvet, p. 147.
22
The “metropolitan solution” has been termed an educational
myth attributable to the desire for simple answers to complex
questions and one which fails to make the distinction between
educational problems which exist in a metropolitan area as
contrasted with problems which can only be solved by a met
ropolitan solution,45
Even if a metropolitan solution is necessary for purposes of
achieving maximum integration, however, the only structural
remedy to the educational problem of size— decentralization—
will by definition conflict with integration in many situations.
The concentration of Negroes and whites in different areas is
the heart of the problem, and this occurs by the decentraliza
tion of the present local educational governments.
In any case, and even if experts are found who revere large
school size, this is the caulderon of educational policy into
which Appellees would thrust the judiciary in decreeing maxi
mum integration by interdistrict remedy.
In addition to the problem of establishing a new framework of
educational government, Appellees’ position raises the equally
difficult problem of how each reorganized unit shall be gov
erned. With hundreds of thousands of people in very large
areas, elections have proved unsatisfactory. They are expensive,
often lack effective supporting political organization, and are
subject to manipulation by narrowly based interest groups. If
the governing body is to be picked by appointment, the appoint
ing authority must be chosen. What civil political officer or
officers will be chosen, answerable to whom. Appointment re
moves the board member one further step from the people he
serves— a crucial problem in a large district whose boundaries
are not, and in a reorganization will not be, coterminous with
any other political entity.
Other problems, while less fundamental, will prove equally
troublesome. What will be done with the collective bargaining
contract of the largest unit? Will this contract be imposed
45. Metro. Schl. Org., supra n. 35, pp. 35, 41-2.
23
over the entire area on the various units and sub-units? May
teachers be transferred from one area to another? Do the
residents of the area through their boards have power to hire,
fire, transfer and promote? Are the teachers responsive to the
constituents of that district— a factor more important than
formal educational qualifications? Who controls finance?
Necessarily the judiciary, under Appellees’ theory, must in
the last analysis determine a myriad of educational problems in
the reorganized districts which affect the day-to-day operation
of the system. Further, since the reorganization process even
without desegregation problems lasts over several school years,
and since desegregation cases historically are marked by long
court sojourns with annual petitions for additional relief as
conditions or doctrine change, judicial intervention will be both
pervasive and long.46 Additionally, the implication of the Sixth
Circuit Court opinion would logically require further judicial
reorganization occurring with demographic change. Its deci
sion is buttressed on the racial identifiability of Detroit “as a
black school system” and a Detroit school district predominantly
black surrounded by a ring of suburbs and school systems pre
dominantly white and historical boundary lines which are con
sidered artificial and must be disregarded.47 As applied to the
country as a whole, this condition will occur in many other
areas, and will reoccur in some areas once an area is desegre
gated given the varying pattern of demographic change.
46. For a poignant history of one desegregation suit, see Cal
houn v. Cook, 332 F. Supp. 804, 805-6 (N. D. Ga. 1971), aff’d
and rev’d. in part; 451 F. 2d 583 (5th Cir. 1972). In view of the
subjective educational and governmental judgments required under
the doctrine here urged by Appellees consistency of lower court
decision would be even less expected than it is in practice under the
present relatively clear single district doctrines. Compare, Kelley v.
Metro Bd. of Ed. of Nashville, Tenn., 463 F. 2d 732, 741 (6th Cir.
1972), cert. den. 409 U. S. 1001, with Goss v. Bd. of Ed. of Knox
ville, 482 F. 2d 1044, 1046-7 (6th Cir. 1973).
47. See, n. 21 supra.
24
D. Affirmance Is Inconsistent with Prior Decision of This
Court.
The internal logic of prior decisions of this Court does not
require or permit the redefinition of the constitutional duty urged
by the Appellees or reached by the Sixth Circuit, There is no
showing that the acts of school authorities in Detroit created the
concentration of black population and black students in Detroit.
Rather, this concentration was a major demographic change
occurring to a greater or lesser extent throughout the country as
a whole. This Court has previously held that the constitution
does not require a particular racial balance in a given school or
stability in racial balance in a school or school district.48 Further,
the Detroit area suburban schools are not part of the Detroit
school system in which segregation was found by the District
Court, but are separate identifiable and unrelated school sys
tems.49 This is not a case where the Detroit area districts are
being created with the effect of hindering a desegregation
order.50 Finally, Appellees have attacked, as has been shown
above, the basic governmental framework and methods of edu
cational management which Michigan has chosen for furnishing
education to its children. This framework and these methods
are matters in which courts lack expertise and familiarity, where
educators cannot agree on the solutions to the many problems
and where it would be difficult to imagine a constitutional re
quirement having a greater impact on the federal system.51
48. Swann v. Charlotte-Mecklenburg Board of Education, 402
U. S. 1, 24, 31-2; Spencer v. Kugler, 326 F. Supp. 1235 (D. N. J.
1971), aff’d. 404 U. S. 1027 (1972).
49. Keyes v. School District No. 1, Denver, Colo., . . . . U. S.
___ , 41 U. S. L. W. 5002, 5006, 5009 (1973).
50. Wright v. Council of Emporia, 407 U. S. 451 (1972).
Neither is this a case such as Haney v. Co. Bd. of Ed. of Seiver
County, 410 F. 2d 920 (8th Cir. 1969), where small all negro
districts were set up as an integral part of a dual system, or Lee v.
Macon Co. Bd. of Ed., 448 F. 2d 746 (5th Cir. 1971), where the
State had acted to prevent desegregation within a single district.
51. San Antonio Independent Schl. Dist. v. Rodriguez, . . . .
U. S......... , 41 U. S. L. W. 4407, 4419-20 (1973).
25
CONCLUSION
As a matter of educational policy, it may be sound in specific
instances for states to reorganize their school districts or to
cause the transfer of students across district lines for the purpose
of creating greater mixing of the races in settings which promise
to further the education of all children. An absolute constitu
tional requirement, however, that states must reorganize any dis
trict in a metropolitan area where its student body is more
heavily black than its neighbors to counteract existing and future
demographic trends would thrust the federal judiciary into
balancing a necessity of integration against and ultimately de
termining the most sensitive areas of school management. Such
a requirement is unwarranted. Amici urge that the decision of
the Sixth Circuit Court of Appeals in this case be reversed.
Respectfully submitted,
L e w i s C . B o s e ,
W i l l i a m M . E v a n s ,
1100 First Federal Building,
Indianapolis, Indiana 46204
Bose , M c K i n n e y & E v a n s
Of Counsel.
TABLE OF CONTENTS TO APPENDIX
PAGE
Excerpts from Supplemental Memorandum of Decision,
December 6, 1973, United States of America, et al. v.
The Board of School Commissioners of Indianapolis,
et al. (S D Ind. No. IP-68-C-225) .......................... A1-A10
Growth of Non-White Population in Major Central Cities,
1960-1970 ...........................................................................A l l
Bureau of Census— Table on birth expectations for report
ing wives, 18 to 39 years old, 1967 and 1972 ............... A12
Bureau of Census— Births to date per 1,000 wives to 18 to
39 years old, 1967 to 1973 ................................................ A13
Bureau of Census-— School Enrollment, 3 to 34 years old
by level, 1967 and 1972 .....................................................A14
Chart of optimum school district size recommendations . . A15
' j
, . . ;
A1
APPENDIX
U n i t e d S t a t e s D i s t r i c t C o u r t
Southern District of Indiana
Indianapolis Division
Un it e d S t a t e s o f A m e r i c a n , e t a l . , '
Plaintiffs,
vs.
hCause No. IP-68-C-225
The B o a r d o f S c h o o l C o m m i s s i o n
ers o f I n d i a n a p o l i s , e t a l
Defendants. __
EXCERPTS FROM
SUPPLEMENTAL MEMORANDUM OF DECISION
(December 6, 1973)
I. Introduction
Heretofore, on August 18, 1971, the Court filed herein its
Memorandum of Decision, incorporating its findings of fact and
conclusions of law, and making certain interim orders, with
respect to the issues presented by the complaint of the original
plantiff, United States of America, and the answer of the
original defendants, The Board of School Commissioners of the
City of Indianapolis, the individual members of such Board, and
the Board’s appointed Superintendent of schools. Such decision,
which will be referred to hereafter as “Indianapolis I,” is re
ported in 332 F. Supp. 655, afFd 474 F. 2d 81 (7 Cir. 1973),
cert. den. 37 L. Ed. 2d 1041 (1973).
Thereafter, on July 20, 1973, the Court filed herein a second
Memorandum of Decision, incorporating its findings of fact and
conclusions of law, and making certain interim orders, with re
spect to certain issues presented by the complaint of the original
A2
and added plaintiffs, Donny Brurell Buckley, et al, and the
answers of the original and added defendants. Such decision
will be referred to hereafter as “Indianapolis II,” is reported
in ........ F. Supp............ , 37 Ind. Dec. 524, and is now on appeal
to the Court of Appeals for the Seventh Circuit, Nos. 73-1968
to 73-1984, incl.
The key decision made in Indianapolis I was that the India
napolis public school system (hereafter “IPS” ) was being oper
ated by the original defendants, and had been operated by their
predecessors in office, as a system practicing de jure segregation
of students of the Negro race. It was therefore held that the
Negro students were being denied the equal protection of the
laws, as guaranteed by the Fourteenth Amendment. Brown v.
Board of Education, 347 U. S. 483 (1954). Certain interim
measures tending to prevent further segregation were ordered,
pending consideration of the questions to be presented and later
decided in Indianapolis II, it being understood that the law re
quired the defendants to take affirmative action to desegregate
IPS Green v. Country School Board, 391 U. S. 430 (1968).
The key decisions made in Indianapolis II were that (1) as a
practical matter, desegregation promising a reasonable degree of
permanence could not be accomplished within the present boun
daries of IPS, and (2 ) added defendant officials of the State of
Indiana, their predecessors in office, the added defendant The
Indiana State Board of Education, and the State itself have, by
various acts and omissions, promoted segregation and inhibited
desegregation within IPS, so that the State, as the agency ulti-
matedy charged under Indiana law with the operation of the
public schools, has an affirmative duty to desegregate IPS.
The Court also held in Indianapolis II that IPS could be effec
tively desegregated either by combining its territory with that
of all or part of the territory served by certain added defendant
school corporations, into a metropolitan system or systems, and
then reassigning pupils within the expanded system or systems
thus created, or by transferring Negro students from IPS to
A3
added defendant school corporations, either on a one-way or an
exchange basis. It further held that the State, through its Gen
eral Assembly, should be first afforded the opportunity to select
its own plan, but that if it failed to do so within a reasonable
time, the Court would have the power and the duty to promul
gate its own plan, and place it in effect. Bradley, et al, v. Milli-
ken, et a l,........F. 2 d .......... (6 Cir. 1973). See Baker v. Carr,
369 U.S. 186 (1962); Reynolds v. Sims, 'i l l U. S. 533 (1964).
By way of affirmative relief pending action by the General
Assembly, the Court ordered IPS to effect pupil reassignments
for the 1973-74 school year sufficient to bring the number of
Negro pupils in each of its elementary schools to approximately
15%, which has been accomplished. The Court also directed
IPS to transfer to certain added defendant school corporations,
and for such corporations to receive and enroll, a number of
Negro students equal to 5% of the 1972-73 enrollment of each
transferee school, with certain exceptions. This order was, on
August 8, 1973, stayed by the Court until the 1973-74 school
year by an order made in open court but not previously reduced
to writing.
At this time, certain matters have been presented to the
Court, both formally and informally, which require further rul
ings in the premises. Such rulings are now made, as hereafter
set out, as supplementary to or, in some instances, in lieu of
rulings heretofore entered in Indianapolis II, as heretofore
modified.
* * * * *
IV. Guidelines of this Court— General
It is, of course, recognized by the Court that it cannot
issue a positive order to the General Assembly to enact specific
legislation. It is for such reason that the Court has suggested
several different methods by which the General Assembly
could approach the problem of effectively desegregating IPS,
A4
and it does not imply that there may not be other equally
effective methods which may occur to that body.
Within the context of what has been suggested as possible
alternatives, however, the Court offers further observations, as
follows:
(1 ) With respect to the concept of one metropolitan school
district, embracing the area designated in Figure 1, attached
to the Court’s opinion in Indianapolis II, it is apparent that
some advantages would be obtained from such a system. To
name a few, a uniform tax base would be provided for the
education of the more than 200,000 pupils in the combined
system, and economy in operation could be achieved through
central purchasing and reduction of administrative overhead.
Complete desegregation would be simplified. On the other
hand, it may be that such a system would be too large in terms
of difficulty of administration and remoteness of the central
office from school patrons.
(2) With respect to the concept of creating various new
metropolitan districts— for example, six or eight to replace the
present twenty-four pictured on Figure 1, it is apparent that
some of the advantages above noted would be reduced, and
some of the disadvantages improved. Another alternate of
course, would be to create one metropolitan system for taxing
purposes, which in turn would be subdivided into several semi-
autonomous local districts. So long as IPS and the local districts
are each effectively desegregated, the method used would be
constitutionally immaterial.
(3 ) With respect to the concept of permitting the present
school corporations shown on said Figure 1 to remain as is,
insofar as geography and control is concerned, such a solution
would of course preserve local autonomy, and this Court would
have no reason to disapprove such a solution, so long a s each such
corporation is required to participate in the desegregation of
IPS. Put in other terms, local autonomy for such corporations
is, under the law of Indiana, a privilege— not a right—all
A5
as discussed in detail in Indianapolis II. The consideration
for permitting the various corporations to continue their separate
existences might therefore be stated to be their participation in
a meaningful plan to desegregate IPS. Some of the pertinent
facts which the General Assembly may wish to consider in
this regard are set out in the next two sections hereof.
V. Transfer of Pupils
When speaking of the transfer of pupils, the first logical
question is as to the numbers involved. In this connection, the
focus must be on the elementary schools within IPS which
were not affected by the interim plan adopted by the Court for
the present school year, and which have an enrollment of
Negro pupils exceeding 80% . There are nineteen such schools,
fourteen of which have Negro enrollments in excess of 97%.
Two additional schools have enrollments exceeding 60% , and
should also be considered. The total enrollment of black
students in these 21 schools, excluding kindergarten and special
education students, is approximately 11,500.
The General Assembly might order the exchange of all
or a substantial part of these 11,500 students with students
from the suburban school corporations. For purposes of illustra
tion, if it were determined to desegregate such schools on the
basis of approximately 85% white— 15% black, then about
9,775 black children would need to be transferred to suburban
schools, and about the same number of non-black children
would need to be transferred to IPS.
There is case law to the effect that transfers of students
must be made on an approximately equal basis insofar as the
races are concerned, unless there is good reason why this
should not be done. In such cases it has been held that to
impose the “burden” of being transported wholly or largely
upon students of one race is yet another from of racial dis
crimination and in violation of the Fourteenth Amendment
rights of the group transported. United States v. Texas Educa-
A6
tion Agency, 467 F. 2d 848 (5 Cir. 1972); Lee v. Macon
County Board of Education, 448 F. 2d 746 (5 Cir. 1971);
Haney v. County Board of Education of Sevier County, 429
F. 2d 364 (8 Cir. 1970). Such cases, if followed, would
seem to mandate so-called “two-way” busing, absent compelling
reasons to the contrary.
The Supreme Court has not specifically addressed itself to
this question. However, it is worthy of note that in McDaniel
v. Barresi, 402 U. S. 39 (1971), that Court approved a de
segregation plan adopted by the Clarke County (Ga.) Board
of Education which reassigned pupils in five heavily Negro
“ ‘pockets’ ” to other attendance zones, busing many of them,
without any corresponding busing of whites. Other “one-way”
busing plans have likewise been approved, depending on the
factual setting. Hart v. County School Board, 459 F. 2d 981
(4 Cir. 1972); Norwalk Core v. Norwalk Board of Education,
423 F. 2d 121 (2 Cir. 1970). Indeed, the Fourth Circuit has
flatly held that a pattern of assigning Negro students to formerly
all-white schools, without requiring similar travel on the part
of whites, does not violate the equal protection clause of the
Fourteenth Amendment. Allen v. Asheville City Board of
Education, 434 F. 2d 902 (4 Cir. 1970). Moreover, analysis
of the cases cited in the preceding paragraph indicates that
they have been decided on their particular facts, even though
some of the language is in terms of absolute requirements.
The Court does not find it necessary to attempt to resolve
this question in terms of constitutional absolutes, nor could it
appropriately do so on the present record, since the question
has not been squarely presented. However, the record does
contain undisputed evidence that virtually all of the twenty-one
IPS elementary schools above referred to (located as shown in
Figure 13, attached) are substantially out of line with the re
quirements of present Indiana law and regulations establishing
minimum acreage requirements for elementary schools. The
regulations require seven acres for schools with 200 or less
A7
pupils, plus an additional acre for each additional 100 pupils
or major fraction thereof. Burns Indiana Rules & Regs., § (28-
415)-3. As reflected in Figure 14, attached, only one of these
schools meets acreage requirements. Most schools are grossly
deficient in the space required— for example, the pupil density
at School 66 is 544.21 pupils per acre, and is 493.57 per acre
at School 42 and 481.33 per acre at School 73. By way of
comparison, the pupil density at School 42, taking into con
sideration its enrollment and the State formula, should be 57.58
pupils per acre. It is thus overcrowded by 857.18%!
The evidence further shows that, with a few exceptions, the
twenty-one schools in question are among the older schools in
the IPS system— some dating back 100 years, more or less.
Although there is no evidence that the Board of School Com
missioners has not maintained such schools as well as could be
expected under the circumstances, it is a fair inference, subject
to further proof, that the type of construction, use of flammable
materials, etc., would fail by a wide margin to meet safety
standards for newly constructed schools. On the other hand,
the evidence discloses that the school plants maintained by
added defendant school corporations are, for the most part,
relatively new and in compliance with acreage and safety
standards.
On the basis of the foregoing facts, therefore, this Court
would not feel justified in condemning out of hand a “one
way” suburban busing plan involving pupils from such of the
twenty-one schools as may seem to the Board, on analysis, to
afford inadequate educational plant facilities, viewed in the
light of current standards. Additionally, such a plan would
involve transportation of substantially fewer pupils, and there
fore be less expensive.
Finally, unless convinced to the contrary by additional evi
dence in an appropriate hearing, this Court is not prepared
to characterize busing as an unmitigated “burden.” Although
it might appear to a child to be “burdensome” to be deprived
A8
of walking to school in the warm days of May and September
(which presupposes that children do not like to ride in motor
vehicles with their neighborhood friends— a somewhat novel
concept to the Court), the Court doubts that it would seem
such a burden to be transported in a heated bus through the
rain, sleet, and snow so familiar in this latitude during other
months of the school term. As pointed out in Indianapolis //,
nearly 80% of suburban pupils (more than 80% since the
elimination of Greenfield) are bused to school at the present
time, without complaint.
The Court is not of the opinion that it would be wise to
require transportation of kindergarten pupils, primarily because
of their age, nor to transport special education pupils because
of the various special problems which would inevitably arise
in this regard. Further, the Court recognizes that special prob
lems arise with respect to high school pupils, which might
render their transfer counter-productive once their high school
training has begun. As to pupils in grades 1-8, however, the
Court knows of no reason why transfer of pupils, in whatever
fashion the General Assembly may elect, would not be reason
able and practical to accomplish the constitutional duty imposed
by the Supreme Court, with the understanding, of course, that
a transferred elementary pupil would thereafter routinely con
tinue to be transferred to the same transferee school corpora
tion for continued education through high school.
If, for example, transfer were made of Negro pupils from
those of the twenty-one schools failing to meet modern stand
ards to the schools of added defendants situate within the
geographical area depicted in said Figure 1, all of those trans
ferred would be afforded education in a desegregated setting.
It should be no great task to desegregate the remaining school
or schools within IPS. The Court estimates, based on the
statistics and projections in the record, that it would be neces
sary for the suburban schools within such Figure 1 area, ex
cluding the Washington Township and Pike Township schools,
A9
to accept transfer of IPS elementary pupils in grades 1-8 in
number equivalent to approximately 15% of their 1973-74
enrollments in the same grades in order to accomplish this
result.
After such transfers were accomplished, the racial percentages
in each school to which transfers were made would be approxi
mately 87% white and 13% Negro— a ratio which, by coin
cidence, would approximate that of the nation as a whole. As
regards Washington Township, its minority percentage as pro
jected for the present school year is already this high, so that
general 1-8 transfers to this defendant would not appear to be
indicated; however, the acceptance of pupil initiated transfers
from IPS to its Everett J. Light Industrial Center, to the extent
that vacancies exist, might well be required. Pike Township
likewise has a substantial minority percentage at this time; how
ever, a number of transfers sufficient to increase such percent
age to a figure approximating that of the other suburban schools
should be considered.
VI. Costs and Mechanics of Transfers
One advantage of the dual transfer system would be that if
approximately equal numbers of pupils were transferred to and
from suburban schools, tuition, transportation, and other costs
would balance out as between IPS and the various other cor
porations, and no additions to school plants would be necessary.
On the other hand, more pupils would be transported, thus in
creasing this total cost, and such a system would continue the
use of the IPS antique buildings and grounds.
A one-way transfer plan would involve substantial tuition
payments from IPS to the transferee schools. To the extent that
such tuition applied only to the actual per capita cost of instruc
tion, utilities, maintenance service, etc., no hardship would be
imposed upon IPS, because it is apparant that IPS expense for
such services would be correspondingly reduced. However, the
A10
present transfer law, I.C. 1971, 20-8.1-6-1 through 20-8.1-6-15,
as amended, Burns §§ 28-5001 through 28-5015, also contem
plate charges related to the fair value of the transferee school
plant, tax levies for building purposes, and other items related
to capital outlay of the transferee school. Considering that the
State of Indiana is itself at fault in this matter, as previously
found, the General Assembly should consider whether the State
should be required to contribute the necessary amount to com
pensate the transferee corporations for the use of their respective
plants. Such a provision, with an appropriate formula, could be
adopted as an amendment to the existing transfer law.
It is possible that the General Assembly could discharge its
duty in this matter simply by amending the existing transfer
law. The purpose of such law, as the Court understands it, is
to permit the better accommodation of school children. As
pointed out in Section III hereof, the Supreme Court of the
United States has held that for a minority child to be compelled
to attend a segregated school denies the Fourteenth Amendmenl
rights of such child: in effect, the child is not properly accom
modated. Therefore, if the transfer law were amended to recog
nize transfers to accomplish desegregation of a school system
which has been finally adjudged to have been segregated de jure
(as is true in the case of IPS), a basis would be established for
other necessary changes regarding time of payment of tuition,
the share to be borne by the State, the matter of responsibility
for and payment of the cost of transportation, and similar details.
Since the actual number or percentage of pupils to be trans
ferred is more of an administrative detail than a legislative func
tion, this matter could be left to the discreation of the local
school board or boards, subject to the approval of the court
having jurisdiction of the case.
GROWTH OF NON-WHITE POPULATION IN
MAJOR CENTRAL CIT IE S - 1 D 6 0 - 1 9 7 0
A 11
Name df SMSA
(1 )
T o t a l
SMSA
P o p u l a
t i o n % N e t
Change
1 9 6 0 - 1 9 7 0
(2 )
T o t a l
C e n t r a l
C i t y
W h i t e
P o p u l a
t i o n %
Ch an ge
1 9 6 0 - 1 9 7 0
U )
T o t a l
C e n t r a l
C i t y N o n -
W h i t e
P o p u l a
t i o n %
C h a n ge
1 9 6 0 - 1 9 7 0
(4 )
T o t a l
C e n t r a l
C i t y
P o p u l a -
u l a t i o n
%. C h a n ge
1 9 6 0 - 1 9 7 0
(5 )
T o t a l
C e n t r a l
C i t y
W h i t e
P o p u l a
t i o n N e t
M i g r a t i o n
( 6 )
T o t a l
C e n t r a l
C i t y N o n -
W h i t e
P o p u l a
t i o n N e t
M i g r a t i o n
( 7 )
E x c e s s o f
N o n - W h i t e G r o w th
R a t e O v e r W h i t e
G r o w t h R a t e i n
C e n t r a l C i t y
( C o l . 3 l e s s
C o l . 2)
New York, N.Y.
Los Angeles-Long
7 . 8 - 9 . 3 6 1 . 6 1 . 1 - 9 5 5 , 5 0 0 4 3 5 , 8 0 0 7 0 . 9
Beach, Cal . 1 6 . 4 4 . 7 5 5 . 6 1 2 . 5 - 6 7 , 2 0 0 1 2 7 , 7 0 0 5 0 . 5
Chicago, 111. 1 2 . 2 - 1 8 . 6 3 8 . 4 - 5 . 2 - 6 4 5 , 6 0 0 1 1 3 , 2 0 0 5 7 . 0
Philadelphia, P a . - N . J . 1 0 . 9 1 2 . 9 2 5 , 2 - 2 . 7 - 2 4 6 , 4 0 0 3 9 , 6 0 0 1 2 . 3
Detroit, Mich.
San Francisco, Oa k-
1 1 . 6 - 2 9 . 1 3 8 . 1 - 9 . 5 - 3 8 6 , 8 0 0 9 7 , 5 0 0 6 7 . 2
land, Cal.
Washington, D.C.
1 7 . 4 - 1 7 . 2 5 1 . 3 - 2 . 8 - 1 5 4 , 5 0 0 £L6,9C0 6 S . 5
Kd.-Va. 3 8 . 6 - 3 9 . 4 3 0 . 7 - 1 . 0 - 1 3 8 , 3 0 0 3 3 , 3 0 0 7 0 . 1
Boston, Mass. SMSA 6 . 1 - 1 6 . 5 6 9 . 9 - 8 . 1 - 1 3 0 , 6 0 0 2 6 , 5 0 0 8 6 . 4
Pittsburgh, Pa. - 0 . 2 - 1 8 . 0 6 . 0 - 1 3 . 9 - 9 9 , 1 0 0 - 6 , 4 0 0 2 4 . 0
St. Louis, M o . - 1 1 1 . 1 2 . 3 - 3 1 . 6 1 9 . 1 - 1 7 . 0 - 1 8 1 , 8 0 0 900 5 0 . 7
Baltimore, Md. 1 4 . 8 - 2 1 . 4 2 9 . 7 - 3 . 5 - 1 4 9 , 7 0 0 3 1 , 7 0 0 5 1 . 1
Cleveland, Ohio 8 . 1 - 2 6 . 5 1 5 . 7 - 1 4 . 3 - 2 0 6 , 4 0 0 - 2 , 8 0 0 4 2 . 2
Houston, Texas 4 0 . 0 - 2 5 . 5 5 0 . 9 3 1 . 4 6 7 , 2 0 0 5 5 , 6 0 0 2 5 . 4
Newark, N.J. 9 . 9
Minneapolis-St. P a u l ,
- 3 6 . 7 5 3 . 6 - 5 . 6 - 1 0 6 , 6 0 0 3 1 , 5 0 0 9 0 . 3
Hinn. 2 2 . 4 - 7 . 9 4 9 . 8 - 6 . 1 - S 4 ,4 00 7 , 2 0 0 5 7 . 7
Dallas, Tex. 3 9 . 0 1 4 . 2 6 6 . 3 2 4 . 2 7 , 5 0 0 4 6 , 9 0 0 5 2 . 1
Seattle-Everett, W ash. 2 8 , 4
Anaheim-Santa-Ana-
- 8 . 5 4 3 . 5 - 4 . 4 - 7 2 , 6 0 0 9 , 8 0 0 5 2 . 0
Garden Grove, C a l . 1 0 1 . 8 5 0 . 8 3 0 1 . 6 5 4 . 4 (NA) (NA) 2 5 0 . 8
.Milwaukee, W is e. 9 . 8 - 1 0 . 4 6 9 . 9 - 3 . 3 - 1 2 8 , 4 0 0 2 3 , 0 0 0 8 0 . 3
Atlanta, Ga.
Cincinnati, O h i o ,
3 6 . 7 - 2 0 . 0 3 7 . 3 2 . 0 - 8 2 , 5 0 0 3 2 , 7 0 0 5 7 . 3
Ky-Ind.
Paterson - C l i f t o n -
9 . 2 - 1 7 . 2 ' 1 5 . 9 - 1 0 . 0 - 1 0 6 , 1 0 0 - 2 , 5 0 0 3 3 . 1
Passaic, N.J. 1 4 . 5 - 9 . 1 9 8 . 1 1 . 0 - 2 5 , 5 0 0 9 , 8 0 0 1 0 7 . 2
San Diego, C a l . 3 1 . 4 1 7 . 2 7 2 . 8 2 1 . 6 2 7 , 6 0 0 1 7 , 3 0 0 5 5 . 6
Buffalo, N.Y. 3 . 2 - 2 0 . 7 ’ 3 4 . 1 - 1 3 . 1 - 1 1 1 , 1 0 0 9 , 0 0 0 5 4 . S
Miami, Fla. 3 5 . 6 1 3 . 5 1 9 . 3 1 4 . 8 2 9 , 4 0 0 - 5 , 7 0 0 . 5 . 8
wnsas C ity , M o .- K a n s . 1 4 . 8 0 3 7 . 3 6 . 6 - 2 8 , 8 0 0 1 3 , 0 0 0 3 7 , 3
Denver, Colo .
San Bernardino,
Riverside, O n t a r i o ,
3 2 . 1 - 0 . 1 6 0 . 2 4 . 2 - - 4 1 , 1 0 0 7 1 2 , 2 0 0 6 0 . 3
4 1 . 2 3 3 . 7 1 1 1 . 1 3 8 . 4 (NA) (NA) 7 7 . 4
Indpls., Ind. 1 7 . 5 9 . 8 3 6 . 0 1 3 . 6 - 1 7 , 4 0 0 1 5 , 4 0 0 2 4 . 2
San Jose, C a l . 6 5 . 8 1 1 1 . 4 3 1 8 . 6 1 1 8 . 3 (NA) (NA) 2 0 7 . 2
New Orleans, La.
Tampa, St . P e t e r s -
1 5 . 3 - 1 7 . 6 1 4 . 9 - 5 . 4 - 9 1 , 6 0 0 - 1 0 , 5 0 0 3 2 . 5
burg, Fla , 3 1 . 1 5 . 2 2 4 . 8 8 . 3 2 4 , 9 0 0 2 4 , 8 0 0 1 9 . 6
fcmland, O re. -W a sh . 2 2 . 8 0 . 2 4 3 . 3 2 . 7 - 7 , 6 0 0 4 , 7 0 0 < 3 . 1
Rhoenix, A r i z .
Columbus, Ohio
4 5 . 8 3 1 . 2 5 2 . 2 3 2 . 4 7 1 , 5 0 0 5 , 6 0 0 2 1 . 0
2 1 . 4 1 1 . 3 3 0 . 8 1 4 . 5 - 1 0 , 6 0 0 S , 400 1 9 . 5
Providence, Paw
tucket, Warwick,
Rl1. -Hass. , SKSAR-1.-Mass., SKSA 1 0 . 9 - 6 . 0 4 8 . 8 - 4 . 8 - 4 0 , 0 0 0 2 , 6 0 0 5 5 . 6
Rochester, N.Y. 2 0 . 5 - 1 7 . 1 1 1 5 . 1 - 7 . 0 - 6 8 , 5 0 0 1 6 , 6 0 0 1 3 2 . 2
San Antonio, T exa s 2 0 . 6 S . 8 3 0 . 6 1 1 . 3 - 5 2 , 3 0 0 5 , 3 0 0 2 0 . S
Dayton, Ohio 1 6 . 9 - 1 7 . 8 3 0 . 7 - 7 . 1 - 6 0 , 3 0 0 6 , 1 0 0 4 8 . 5
fh B.UreaU ° f t h e C e n s u s » S t a t i s t i c a l A b s t r a c t
W Uruted S t a t e s - 1 9 7 2 , S e c t i o n 3 3 , p a g e 8 3 7 , et. s e q ,
BUREAU OF THE CENSUS, THE SOCIAL AND ECONOMIC
STATUS OF THE BLACK POPULATION IN THE UNITED
STATES, 1972, RPT■ P-23 NO. 26, (1973)______
TABLE 59. SELECTED DATA ON BIRTH EXPECTATIONS FOR REPORTING
WIVES, 18 TO 39 YEARS OLD: 1967 AND 1972
Subject
1967
I number o f r e p o r t i n g
riegro-------
ihite-------
-thousands-
-thousands-
age number o f b i r t h s
late:
cage number o f t o t a l
pths expected:
Segro---------------------------
Ifoite-----------------------
:ent of expected c h i l d r e n
jeady born:
Iegro-----------------------------------
Ihite-----------------------------------
1972
al number of r e p o r t i n g
ves:
Negro th o u sa n d s -
Bhite th o u s and s*-
rage number o f b i r t h s
date:
|egro-------------------------------
White............... .......................
number o f t o t a l
P s expected:
Wegro---------------------------
Ihite------------------
h of expected c h i l d r e n
toady born:
Segro-------------------------
ft ite --------------
Total,
18 to 39
years
Age of Wife
18 to 2-4 25 to 29 30 to 34 35 to 39
1,280 342 307 309 321
14,440 3,793 3,420 3,390 3,831
3.2 1.8 3.0 3.9 4.2
2.4 1.1 2.3 3.0 3.1
3.7 2.8 3.4 4.3 4.2
3.1 2.9 3.0 3.2 3.2
87 64 88 92 98
77 39 75 93 97
1,449 400 353 347 348
16,681 4,670 4,392 3,909 3,711
2.7 1.3 2.1 3.5 3.9
2.0 0.9 1.8 2.7 3.1
3.2 2.4 2.8 3.7 4.0
2.6 2.2 2.4 2.8 3.2
84 55 76 95 99
77 40 74 94 99
b.S. Department of Commerce, Social and Economic Statistics
Administration Bureau of the Census.
EXCERPTS FROM BUREAU OF THE CENSUS, BIRTH
EXPECTATIONS OF AMERICAN WIVES JUNE 1973,
RPT. P-20, NO. 254, TABLE 1____________
Table 1. Births to Date, Additional Births Expected, and Total Births Expected Per 1,000 Wives 18 to 39 Years Old
Reporting on Expectations, by age, and by race and Spanish Origin for selected years: 1967 to 1973
(Civilian noninstitutional population)
Subject and age
of wife
All Races White Negro Spanish
origin
19731973 1972 1971 1967 1973 1972 1967 1973 1972 1967
girths To Date Per 1,000 Wives
18 to 39 years--------------
18 to 24 years-----------
18 and 19 years--------
20 and 21 years--------
22 to 24 years— --------
25 to 29 years------------
30 to 34 years-----------
35 to 33 years------------
2,044
895
588
743
1,049
1,755
2,623
3,189
2,090
928
608
721
1,098
1,807
2,749
3,173
2,146
952
571
771
1,124
1,949
2,802
3,210
2,427
1,173
731
970
1,366
2,312
3,050
3,214
2,008
848
540
697
1,004
1,723
2,589
3,149
2,039
893
565
661
1,073
1,781
2,681
3,109
2,357
1,116
654
893
1,317
2,255
2,974
3,130
2,540
1,372
(B)
1,218
1,502
2,210
3,089
3,857
2,688
1,325
(B)
1,258
1,435
2,147
3,548
3,945
3,193
1,787
(B)
1,657
2,015
2,996
3,929
4,157
2,447
1,109
(B)
(B)
1,282
2,217
3,316
3,641
>•
A
13
iSl
ii
BUREAU OF THE CENSUS, THE SOCIAL AND ECONOMIC
STATUS OF THE BLACK POPULATION IN THE UNITED
STATES, 1972, RPT. P-23 NO. 26, (1973)________
TABLE 46. SCHOOL ENROLLMENT OF PERSONS 3 TO 34 YEARS OLD,
BY LEVEL: 1967 AND 1972
(Numbers in thousands. Minus sign (-)
denotes decrease)
1967 1972
Percent
change
6,826 7,959 16.6
140 185 32.1
418 448 7.2
4,618 4,573 -1.0
1,651 2,025 22.7
370 727 96.5
43,816 51,314 17.1
564 1,079 91.3
2,840 2,633 -7.3
28,415 27,185 -4.3
11,997 12,959 8.0
5,905 7,458 26.3
Level of school and race
BLACK
' Total----------------
wtseiy—:-----------------
fyidergarten------
llementary s ch o o l—
ligh school-------------
tollege-----------
WHITE
t Total---------------
fernery--------------------
pfndergarten-----------
llementary s c h o o l—
Btgh school-------------
Allege--------------------
Source: U. S. Department of Commerce, Social and Economic Statistics
Administration, Bureau of the Census.
A 15
OPTIMUM SCHOOL DISTRICT SIZE
by Michael E. Hickey
December 1969
Table V.
Summary of Optimum Size Recommendations
Criterion
Community control
Community control
General quality
General quality
General quality
General quality
General quality
General quality
Quality /economy
Quality/economy
Quality/economy
Quality/economy
Effectiveness
Cost/pupil
Tax effort required
Special staffing
Net current expenditure
Elementary school unit
Secondary school unit
Administrative de
cen tra liza tion
Administrative de
cen tra liza tion
Administrative de
cen tra liza tion
Administrative d i s t r i c t
Administrative d i s t r i c t
Administrative d i s t r i c t
Special Services:
Adult education
Business administration
Electronic Data Pro
cessing
Special Education
Optimum Size
50.000 total population
7.000- 8,000 pupils
10.000 pupils (min.)
28.000 pupils
50.000 pupils
1,500 pupils (rain.)
10.000 pupils
25.000 pupils
10.000- 20,000 pupils
5.000 pupils (min.)
5.000- 6,000 pupils (min.)
12.000 pupils
10.000 pupils
50.000 pupils
12.000 pupils
25.000 pupils
50.000 pupils
500 pupils (max.)
700-1,000 pupils
300.000- 500,000
total pop.
20.000 pupils
12.000- 40,000 pupils
20.000- 50,000 pupils
15.000- 20,000 pupils
10.000- 12,000 pupils
20.000 (min.)
35,000-50,000 pupils
100.000 pupils
20.000 pupils
Source
Havighurst (1968)
Havighurst (1968)
State of California
Swanson (1962)
Benson (1965)
Conant (1969)
Packard (1963)
Comm, for Economic
Development (1960)
Faber (1966)
Fitzwater (1958)
McClure
Dawson (1948)
Nat. Comm, on
School District
Reorg. (1948)
Hanson (1962)
Vincent (1966)
Vincent (1966)
Vincent (1966)
NEA DEP (1954)
White House Conf.
on Education
Havighurst (1963)
Passow (1967)
Bundy (1967)
IAR, Columbia
Univ. (1961)
Peabody Coll. (1965)
AASA (1959)
Great Plains
School District
Organization
Project (1968)
IN THE
Supreme Court of tfje Umteb States;
O ctober T erm , 1973.
Nos. 73-434, 73-435 and 73-436
WILLIAM G. MILLIKEN, e t a l .,
Petitioners,
vs.
RONALD G. BRADLEY, e t a l .
ALLEN PARK PUBLIC SCHOOLS, e t a l .,
Petitioners,
vs1.
RONALD G. BRADLEY, e t a l .
THE GROSSE POINTE PUBLIC SCHOOL SYSTEM, e t a l .,
Petitioners,
vs.
RONALD G. BRADLEY, e t a l .
o n p e t i t i o n f o r w r i t o f c e r t i o r a r i t o t h e u n i t e d s t a t e s
C O U R T O F A P P E A L S F O R T H E S IX T H C IR C U IT .
MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE
AND BRIEF OF THE SCHOOL TOWN OF SPEED
WAY, INDIANA AND THE SCHOOL CITY OF
BEECH GROVE, INDIANA, AMICI CURIAE.
RICHARD L. B R O W N ,
BUTLER, B R O W N & H A H N ,
Room 400,
156 East M arket Street,
Indianapolis, Indiana 46204,
632-9411,
R IC H A R D D . W A G N E R ,
K R IE G D eV A U L T A L E X A N D E R
& C A P E H A R T ,
2860 Indiana National Bank
Tow er,
Indianapolis, Indiana 46204,
636-4341,
Attorneys fo r Am ici Curiae.
Gunthorp-Warren Printing Company, Chicago • 346-1717
''
- - ■ ■ ■ ■:-
.
IN TH E
Supreme Court of tbt Umteb il>tate£
O c t o b e r T e r m , 1973.
Nos. 73-434, 73-435 and 73-436
WILLIAM G. MILLIKEN, e t a l .,
v s .
RONALD G. BRADLEY, e t a l .
P e t i t i o n e r s ,
ALLEN PARK PUBLIC SCHOOLS, e t a l „
P e t i t i o n e r s ,
v s .
RONALD G. BRADLEY, e t a l .
THE GROSSE POINTE PUBLIC SCHOOL SYSTEM, e t a l .,
P e t i t i o n e r s ,
v s .
RONALD G. BRADLEY, e t a l .
ON PETITION F O R W R IT O F C E R T IO R A R I T O T H E U N IT E D STATE S
C O U R T O F A P P E A L S F O R T H E S IX T H C IR C U IT .
MOTION FOR LEAVE TO FILE BRIEF
AMICI CURIAE.
2
The School Town of Speedway, Indiana and The School City
of Beech Grove, Indiana hereby respectfully move for leave to
file the attached Brief Amici Curiae in these cases. All attorneys
for the parties in these appeals have been contacted and their
consent requested to file such Brief. Some of such attorneys
have given such consent, but movants have been unable to ob
tain same from all such attorneys.
The interest of The School Town of Speedway, Indiana and
The School City of Beech Grove, Indiana, arises from the follow
ing facts. Both movants are school corporations created and
existing under Indiana law. They own and operate school sys
tems which serve, respectively, the civil town of Speedway and
the civil city of Beech Grove, Indiana, two small communities
adjacent to the City of Indianapolis.
On August 18, 1971, the United States District Court for the
Southern District of Indiana, after a trial of an action brought
by the United States, entered a judgment in which it found that
the Indianapolis Public School System (IPS) was guilty of seg-
regatory practices in the operation of its schools.1 The trial
court speculated in its opinion that a desegregation plan limited
to IPS would not remain demographically stable and that IPS
would at some future point have enrolled a higher percentage
of black students than was acceptable to the district court.
Subsequently an intervening complaint was filed and nineteen
school corporations and certain state officials added as defend
ants. Movants were among the added school corporations.
Following another trial, the court entered a judgment in which
it found, i n t e r a l i a : (1 ) that the prior judgment against IPS
was r e s j u d i c a t a against the added school corporations and state
officials; (2 ) that none of the added school corporations were
guilty of segregatory practices; and (3 ) that all of the school
corporation defendants were amenable to orders effecting stu
dent transfers between such defendants in quantities designed
1. U . S . v. B d . o f S c h o o l C o m m i s s i o n e r s , 332 F. Supp. 655,
aff’d., 474 F. 2d 81 (7th Cir. 1973), cert. den. 37 L. Ed. 2d
1041 (1973).
3
to achieve a prescribed degree of racial balance within IPS.
That decision is presently on appeal to the United States Court
of Appeals for the Seventh Circuit.2 Thus, movants are in
volved in an action similar to the case at bar. A decision by
this Court in the instant action may provide precedent for the
Seventh Circuit’s decision.
Both the School Town of Speedway, Indiana and The School
City of Beech Grove, Indiana are independent school corpora
tions which have territorial boundaries coterminous with the
municipalities which they serve. As such entities, they have com
munity interests distinct and separate from other types of school
corporations which will be adversely affected if this Court ap
proves the power of district courts to enter orders such as those
made in the cases at bar. The distinct interests of school corpora
tions serving towns and cities has not heretofore been argued by
the parties in this appeal or considered in the Court of Appeals
below, and such interests are relevant to any disposition of this
appeal. Movants do not believe that the arguments made in the
attached Brief will be made by any other party to these appeals.
Respectfully submitted,
/s/ RICHARD L. B R O W N ,
BUTLER, B R O W N & H A H N ,
R oom 400,
156 East M arket Street,
Indianapolis, Indiana 46204,
632-9411,
R IC H A R D D . W A G N E R ,
K R IE G D eV A U L T A L E X A N D E R
& C A P E H A R T ,
2860 Indiana N ational Bank
Tow er,
Indianapolis, Indiana 46204,
636-4341,
Attorneys for The School Town o f Speedway, Indiana, and The School City
o f B eech Grove, Indiana.
2- United States, Plaintiff-Appellant and Donny Brurell Buckley,
et, °l.> Intervening Plaintiffs-Appellees V. Board of School Com
missioners, et al., Nos. 73-1968 through 73-1984, in the Seventh
circuit Court of Appeals.
: Cj? ::rr£ X £ S £
-.;;■: £v; £? , . .:: V ; ® « 3 f i : S i v ' ~
'
r n im rn m m m M rn
■
IN TH E
Supreme Court of tfte Hmteb H>tate3
O ctober Term , 1973.
Nos. 73-434, 73-435 and 73-436.
WILLIAM G. MILLIKEN, e t a l .,
vs.
Petitioners,
RONALD G. BRADLEY, e t a l .
ALLEN PARK PUBLIC SCHOOLS, e t a l .,
Petitioners,
vs.
RONALD G. BRADLEY, e t a l .
THE GROSSE POINTE PUBLIC SCHOOL SYSTEM, e t a l „
Petitioners,
vs.
RONALD G. BRADLEY, e t a l .
ON PETITION F O R W R IT O F C E R T IO R A R I T O T H E U N IT E D STATE S
C O U R T O F A P P E A L S F O R T H E S IX T H C IR C U IT .
brief of th e sch o o l t o w n of s p e e d w a y ,
INDIANA AND THE SCHOOL CITY OF
BEECH GROVE, INDIANA,
AMICI CURIAE.
TABLE OF CONTENTS.
---------------- PAGE
Table of Authorities ................. i
Interest of Amici C uriae................. 1
Argument ................................................................................ 2
Conclusion................................................................................ 7
T a b l e o f A u t h o r i t i e s .
Cases.
Deal v. Cincinnati Bd. of Ed., 369 F. 2d 55 (6th Cir.
1966), cert, den., 389 U. S. 847 (1 9 6 7 )........................ 4
Gomillion v. Lightfoot, 364 U .S. 339 (1 9 6 0 ).................. 5
Hunter v. Pittsburgh, 207 U. S. 161 (1 9 0 7 )...................... 5
Keyes v. School District No. 1, Denver, Colorado, ........
U. S......... . 37 L. Ed. 2d 548 (1 9 7 3 )............................. 4
Pierce v. Society of Sisters, 268 U. S. 510 (1 9 2 5 )........... 5
Spencer v. Kugler, 326 F. Supp. 1235 (D. N. J. 1971),
aff’d. per curiam, 404 U. S. 1027 (1 9 7 2 ).......................... 5
Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1
(1971) ........................................................................... 5
United States of America, Plaintiff-Appellant, and Donny
Brurell Buckley, et ah, Intervening Plaintiffs-Appellees
v. Bd. of School Commissioners, et ah, Nos. 73-1968
through 73-1984, in the U. S. Court of Appeals, Seventh
Circuit .................................................................................. 2
U. S. v. Bd. of School Commissioners, 332 F. Supp. 655,
aff’d., 474 F. 2d 81 (7th Cir. 1973), cert. den. 37 L.
Ed. 2d 1041 (1973) ............................................................ 1
11
Statutes and State Constitution.
Bums Ind. Stat. § 28-2603 .................................................. g
Indiana Constitution, Art. 2, § 2 ......................................... g
Other.
P. Smith, As a City Upon a Hill, The Town in American
History (Alfred A. Knopf, 1 9 6 6 ) ..................................2,4,7
U. S. Dept, of Commerce, Bureau of the Census, Vol. 1,
Governmental Organization, 1972 Census of Govern
ments .................................................................................... 2
Will Herberg, Ed.: The Writings of Martin Buber (New
York: Meridian Books; 1956) ....................................... 4
1
INTEREST OF AMICI CURIAE.
The interest of The School Town of Speedway, Indiana and
The School City of Beech Grove, Indiana, arises from the
following facts. Both movants are school corporations created
and existing under Indiana law. They own and operate school
systems which serve, respectively, the civil town of Speedway
and the civil city of Beech Grove, Indiana, two small com
munities adjacent to the City of Indianapolis.
On August 18, 1971, the United States District Court for
the Southern District of Indiana, entered a judgment in which
it found that the Indianapolis Public School System (IPS) was
guilty of segregatory practices in the operation of its schools.1
The trial court speculated in its opinion that a desegregation
plan limited to IPS would not remain demographically stable
and that IPS would at some future point have enrolled a higher
percentage of black students than was acceptable to the district
court.
Subsequently an intervening complaint was filed and nine
teen school corporations and certain state officials added as
defendants. Movants were among the added school corpora
tions. Following another trial, the court entered a judgment in
which it found, inter alia: (1) that the prior judgment against
IPS was res judicata against the added school corporations and
state officials; (2 ) that none of the added school corporations
were guilty of segregatory practices; and (3 ) that all of the
school corporation defendants were amenable to orders effect
ing student transfers between such defendants in quantities
designed to achieve a prescribed degree of racial balance within
IPS. That decision is presently on appeal to the United States
1. U. S. v. Bd. of School Commissioners, 332 F. Supp. 655,
aff’d., 474 F. 2d 81 (7th Cir. 1973), cert. den. 37 L. Ed. 2d
1041 (1973).
Court of Appeals for the Seventh Circuit.2 Thus, movants are
involved in an action similar to the case at bar. A decision by
this Court in the instant action may provide precedent for the
Seventh Circuit’s decision.
ARGUMENT.
"It is not the time to try to say with final authority
what the town has meant in American life. Its mean
ings are profound and various. But of its importance
there can be no question."3
One of the questions in the case at bar and in the action in
which these amici are parties is whether a federal district court
may order the busing of school students between separate, in
dependent school corporations in order to remedy discriminatory
practices found to exist in only one of such school corpora
tions. These amici believe that the far reaching impact of such
an order may be seen in clearer detail when viewed from the
vantage point of a school corporation which serves a city or
town separate and distinct from the school district in which
such discriminatory practices were effected.
Throughout this country, hundreds of school corporations
exist which have geographical boundaries coextensive with small
towns and cities.4 Several of such school corporations are
2. United States, Plaintiff-Appellant and Donny Brurell Buckley,
et al., Intervening Plaintiffs-Appellees V. Board of School Com
missioners, et al., Nos. 73-1968 through 73-1984, in the Seventh
Circuit Court of Appeals.
3. P. Smith, As a City Upon a Hill, The Town in American
History (Alfred A. Knopf, 1966), p. 307.
4. In 1972, the U. S. Bureau of the Census reported the
existence in the United States of 15,281 “independent school dis
tricts,” i.e., school districts which are administratively and fiscally
independent of any other government. Of this number, 597 of
such districts had coterminous “citywide” boundaries. The same
source reported a total of 1457 “dependent school districts” of which
247 had coterminous “citywide” boundaries. In total, there were,
in 1972, 844 “citywide” systems with 8.2 million pupils. U. S.
Dept, of Commerce, Bureau of the Census, Vol. 1, Governmental
Organization, 1972 Census of Governments, pp. 3, 6, 8 and 40.
2
3
parties to these appeals. These amici are also school corpora
tions which have such territorial boundaries and which serve
small municipalities located in the State of Indiana.
Typical of such municipal school corporations is one of
these amici, The School Town of Speedway. The civil town of
Speedway, Indiana, which it serves, has a population of approxi
mately 17,500. The town is governed by a board of trustees
elected by the citizens of the town. The town board is em
powered to control all other municipal departments and ap
points their administrators. Schools which serve the com
munity are owned and administered by an independent corpora
tion created by statute and designated as The School Town of
Speedway. The administration of that school corporation is
vested in a three-man board of school trustees appointed by
the civil town board of trustees on a non-partisan basis. The
School Town of Speedway neither owns nor operates school
buses. All schools are physically located within the town
boundaries so that students have access thereto either by walk
ing or other means of transportation provided by the students
or their parents. The operational funds for the schools are
provided almost entirely through taxes paid by citizens of the
Town. Although this small community is geographically
dwarfed by the adjacent City of Indianapolis, it encompasses
large industries in which many of its citizens work. In short,
it is a distinct community whose citizens take pride in local
community projects and operations, and which has a municipal
government and school system responsive to the local problems
and needs of the community.
The rationale of state legislatures in fixing school boundaries
to the boundaries of the small towns and cities which they serve
is not limited to mere physical convenience:
[I]f we except the family and the church, the basic
form of social organization experienced by the vast major
ity of Americans up to the early decades of the 20th
Century was the small town. In the words of Thorstein
Veblen: “The country town is one of the great American
institutions; perhaps the greatest, in the sense that it has
and had and continues to have a greater part than any
other in shaping public sentiment and giving character to
American culture.”3
The real essence of a community is found in the fact that it
has a center, and the beginning of a community arrives when
its members have a common relation to the center.5 6 It is this
common relationship which gives vitality to a school system
serving the small community. The importance of this common
relationship becomes readily apparent when one views the chaos
of many big city school systems as contrasted to the stability
and quality of those found in smaller communities.
The small community, then, as many legislatures and educa
tors have found, provides a desirable environment for imple
mentation of a community-wide school system which can truly
give consideration to such important factors as home-school
communication, children attending school within the vicinity
of home, minimization of transportation safety hazards, economy
of cost and ease of pupil placement and administration. See
opinion of Mr. Justice Powell, concurring in part and dissent
ing in part, Keyes V. School District No. 1, Denver, Colorado,
........ U. S............ , 37 L. Ed. 2d 548 (1973); Deal v. Cincinnali
Bd. of Ed., 369 F. 2d 55 (6th Cir. 1966), cert, den., 389
U. S. 847 (1967).
It is thus beyond argument that towns and cities provide a
logical, reasonable and desirable setting for operation of in
dependent school corporations. The essential question is whether
federal courts can forcibly transfer children attending such a
school system, and otherwise disregard the independent nature
of such a system,7 in order to effect a judicially prescribed
degree of racial balance in a given geographical area.
5. P. Smith, supra, pp. vii-viii.
6. Will Herberg, Ed.: The Writings of Martin Buber (New
York: Meridian Books; 1956), p. 129.
7. In one of the district court orders entered in the case in
which these dmici were parties, the trial court has presumed the
power to consolidate all of the school corporations in the Indianapolis
4
5
Absent an overt, affirmative state act which contravenes a
Constitutionally protected right, federal courts have no power
to circumscribe the rights of the states to establish municipalities
and school corporations to serve the members of such com
munities. S p e n c e r v. K u g l e r , 326 F. Supp. 1235 (D. N. J.
1971), aff’d. per curiam, 404 U. S. 1027 (1972); G o m i l l i o n v.
l i g h t f o o t , 364 U. S. 339 (1960); and H u n t e r v. P i t t s b u r g h ,
207 U. S. 161 (1907). These principles alone, in addition to
this Court’s rejection of the concept of “racial balance or mix
ing”, S w a n n V. C h a r l o t t e - M e c k l e n b u r g B d . o f E d . , 402 U. S.
1 at 24 (1971), provide sufficient authority for a reversal of
the lower courts in the instant case.
In an attempt to avoid the limitations found in the above
precedents and other cases, the Sixth Circuit Court of Appeals
in the cases at bar apparently adopted the theory that all school
corporations are agents of the state and since the state is
responsible for school matters, the rights of individual school
corporations could be ignored. Such a theory is flawed in many
respects. These a m i c i wish to only point out that if this concept
is not rejected by this Court, it will allow one school corporation
to be held to answer for the wrongdoings of another. In ad
dition to the fact that guilt by association is anathema to our
jurisprudence, such a novel concept would effect a fundamental
deprivation of the Constitutional rights of the innocent school
corporation. Long ago this Court held that private corporations
created under state law for school purposes were entitled to the
protection afforded by the guarantees of the United States
Constitution. P i e r c e v. S o c i e t y o f S i s t e r s , 268 U. S. 510 (1925).
No reason exists for holding that public school corporations
are to be treated differently.
Many other legal arguments could be discussed, but they will
undoubtedly be made by the parties to these appeals. It is the
area “along metropolitan lines” . Supplemental Memorandum of
decision, entered December 6, 1973, by The U. S. District Court,
southern District of Indiana, Cause No. IP 68-C-225, Slip Opinion,
6
practical and factual impact of the opinion of the Sixth Circuit
in the instant case which these amici wish to primarily empha
size. If that opinion is allowed to stand and becomes the law
of the land, judicial power in desegregation cases will know no
bounds. Students will be transported from the small towns and
cities in which they, their families and friends reside, into the
schools of large metropolitan areas. The burden of busing for
racial balance may fall upon school children who have always
walked to a nearby school (as is the case with most Speedway
students). Parental interest and participation in school affairs
will be frustrated. Many school officials are elected by voters
who reside within the territorial boundaries of the school cor
poration or district.8 Small town citizens may thus experience
the anomaly of being required to send their children to a school
system administered by officials over whom they exercise no
voting control. Every school corporation located in any degree
of proximity to a large metropolitan area will become amenable
to remedial racial balancing decrees, no matter how separate or
independent those school corporations may be. The touchstone
of judicial power will be demography, not equity.
8. This is the case for example, with respect to school officials
of the Indianapolis Public School System. See Indiana Constitution,
Art. 2, § 2; Burns Ind. Stats. § 28-2603. Thus in the case in whicB
these amici are parties, residents of Beech Grove and Speedway
cannot vote for Indianapolis school officials.
7
CONCLUSION.
The district courts involved in the cases with which this Brief
is concerned have promulgated decrees which eventually could
destroy one of the traditional fabrics of American life. Their
decrees formulate a blueprint for federally constituted school
systems which ignore the natural community interests of parents,
teachers and children. Our nation has drawn its life from small
communities, and it is itself a community of communities.0
This Court should not affirm a court decree which would forever
destroy the rights of the citizens of the towns and cities of this
nation to educate their children in school corporations designed
and established to serve individual communities.
Respectfully submitted,
RICHARD L. BROWN,
BUTLER, B R O W N & H A H N ,
Room 400,
156 East M arket Street,
Indianapolis, Indiana 46204,
632-9411,
Attorneys for The School Town
R IC H A R D D . W A G N E R ,
K R IE G D eV A U L T A L E X A N D E R
& C A P E H A R T ,
2860 Indiana N ational Bank
T ow er,
Indianapolis, Indiana 46204,
636-4341,
o f Speedway, Indiana, and The School City
o f B eech G rove, Indiana.
P. Smith, supra, p. 14.
IN TH E
Supreme Court of The United States
October Term, 1973
WILLIAM G. M ILLIKEN, et al., )
P e t i t i o n e r s , )
vs. )
RONALD G. BRADLEY, et al., )
R e s p o n d e n t s , )
)
ALLEN P A R K PUBLIC SCHOOLS, et al., )
P e t i t i o n e r s , )
vs. )
RONALD G. BRA D LEY, et al., )
R e s p o n d e n t s , )
)
THE GROSSE POINTE PUBLIC SCHOOL)
SYSTEM, et al., )
P e t i t i o n e r s , )
vs. )
RONALD G. BRA D LEY, et al., )
R e s p o n d e n t s . )
BRIEF ON THE MERITS IN SUPPORT
OF PETITIONERS SUBMITTED AMICUS
CURIAE BY THE STATE OF INDIANA
T h e o d o r e L. S e n d a k
A t t o r n e y G e n e r a l o f I n d i a n a
D o n a l d P. B o g a r d
D e p u t y A t t o r n e y G e n e r a l
W l l i a m F. H a r v e y
S p e c i a l C o u n s e l f o r t h e
A t t o r n e y G e n e r a l
Office of Indiana Attorney General
219 State House
Indianapolis, Indiana 46204
Telephone: (317) 633-4076
No. 73-434
No. 73-435
No. 73-436
Central Publishing Company, Inc., Indianapolis, Ind. 46206
Page
Table of Authorities ...... ................................................. iii
Opinion Below .................... 2
Jurisdiction ............................................................................. 2
Consent of Parties ............................................................. 2
Questions Presented ............................... 2
Constitutional and Statutory Provisions Involved . . . 3
Interest of the Amicus C u riae....................................... 6
A. Michigan .................................................................. 10
B. Indiana .................................................................. 11
• 1. Indianapolis Public School System, Marion
County, Indiana........................................... • 12
2. State Officials in Indiana........................... 13
3. Additional School Districts Within Marion
County, Indiana ........................................... 13
4. Additional School Districts Outside Marion
County, Indiana ........................................... 11
C. Indiana and Michigan Compared ................... 18
D. The Metropolitan R em edy................................. 19
Statement of the Case .................................................... 21
Argument I A Federal District Court does not have
the power to order the transfer or ex
change of students from one school dis-
TABLE OF CONTENTS
i
TABLE OF CONTENTS— Continued
Page
tr ic t fou n d to be g u ilty o f de jure seg
regation across p olitica l boundaries to
oth er school d istrict fou n d n ot to be
g u ilty o f a n y de ju re v io lation s .............. 22
A rg u m e n t I I T h e F ou rteen th A m en d m en t does not
require a state to rem ove black children
fr o m schools in w hich th ey constitute
a m a jo r ity o f the students enrolled, or
a su bstan tia l m in o rity , in order to mix
th em w ith w hite children in other school
d istricts, so th a t the black children
w ill a lw ays be in a. racia l m in o r it y ___ 21
A T h e C on stitu tion al D efin ition ____ 21
B A S chool B o a rd s D u t y .......................... 27
C T h is C ase and the N e w Constitution
fo r M etro p o lita n A m e r i c a ................. 28
C onclusion .................................................................................................. 30
C ertificate o f S ervice ....................................................................... 32
n
TABLE OP AUTHORITIES
Cases P a g e
B r a d l e y v . M i l l i h e n , (6 th d ir ., 1 9 7 3 ) 4 8 4 F .2 d 215 . . . 2
B r a d l e y v . S c h o o l B o a r d o f R i c h m o n d , V i r g i n i a , 462
F.2d 1058 ( 4th C ir. 19 7 2 ) ....................................... 8 ,2 3 ,2 7 ,2 9
B r o w n v . B o a r d o f E d u c a t i o n , 347 U .S . 483 (1 9 5 4 ) . . . 8,
21 , 24, 26
B r u n s o n v . B o a r d o f T r u s t e e s , 429 F .2 d 820 (4th Cir.
1970) ........................................................................................................2 0 ,2 9
D e a l v . B o a r d o f E d u c a t i o n , 369 F . 2d 55 (6th
Cir., 1965) ......................................... 27
D o w n s v . B o a r d o f E d u c a t i o n , 366 F .2 d 988 (10th
Cir., 1964) ...................................... 27
G a y l e v . B r o w d e r , 352 U .S . 903 (1 9 5 6 ) ............................. 26
G r e e n v . C o u n t y S c h o o l B o a r d o f N e w K e n t , C o u n t y ,
V i r . , 391 U .S . 430 (1 9 6 8 ) ..................................................... 1 5 ,2 1
H a n e y v . C o u n t y B o a r d o f E d u c a t i o n o f S e i v e r C o u n t y
410 F .2d 920 (8 th C ir . 19 6 9 ) .............................................. 27
H i g g i n s v . B d . o f E d . C i t y o f G r a n d R a p i d s , M i c h . ,
No. C A 6386 (W .D . M ich . J u ly 18, 1973) ..................... 28
H o l m e s v . C i t y o f A t l a n t a , 350 U .S . 879 (1 9 5 5 ) ........... 26
K e y e s v . S c h o o l D i s t r i c t N o . 1 , 93 S .C t. 2686 (1 9 7 3 ) . .8 , 21,
24, 26, 28
D e e v . M a c o n C o u n t y B o a r d o f E d u c a t i o n , 448 F .2 d
746 (5th Cir. 1971) ...................................................................... 27
M a p p v . B d . o f E d . o f C h a t t a n o o g a , 329 F . S u p p . 1374
(E .D . Tenn. 19 7 1 ) 1378 ............................................................ 28
M a y o r a n d C i t y C o u n c i l o f B a l t i m o r e C i t y v . D a w s o n ,
350 U .S . 877 (1 9 5 5 ) .................................................................... 26
xii
TABLE OF AUTHORITIES— Continued
C a s e s — c o n t i n u e d Page
M u i r v . L o u i s v i l l e P a r k T h e a t r i c a l A s s n . , 347 U S
971 (1 9 5 4 ) .............................................................................................. 26
■ N o r t J i c r o s s v . B o a r d o f E d u c a t i o n o f M e m p h i s C i t y
S c h o o l s , 397 U .S . 232 (1 9 7 0 ) . ................ ........................ 29
N o r t h c r o s s v . B d . o f E d . M e m p h i s , T e n n . , N o . 73-1954;
N o . 7 3 -1667 (6th C ir ., D ec. 4 , 1 9 7 3 ) ........................ .. 21
O f f e r m a n v . N i t k o w s k i , 378 F . 2d 22 (2n d C ir ., 1967) . . 27
P l e s s y v . F e r g u s o n , 163 U .S . 537 (1 8 9 6 ) ............................ 21
R a n e y v . B o a r d o f E d u c a t i o n o f G o u l d S c h o o l D i s t . ,
391 U .S . 443 (1 9 6 8 ) .... .............................................. 29
S a n A n t o n i o I n d e p e n d e n t S c h o o l D i s t . v . R o d r i q u e z ,
4 11 U .S . 1 ................................................................................... 28,30
S e a l y v . D e p t , o f P u b l i c I n s t r u c t i o n , 252 F . 2d 898
(3 rd C ir ., 19 5 7 ) . . . . . ................ 27
S p e n c e r v . K u g l e r , 326 F . S u p p . 1235 , (D .N .J .
19 7 1 ) ................................................. 9 ,23 ,26 ,30
S p r i n g f i e l d S c h o o l C o m m i t t e e v . B a r k s d a l e , 348 F.2d
261 (1 s t C ir ., 19 6 5 ) ................. 27
S w a n n v . C h a r l o t t e - M e c k l e n b u r g B o a r d o f E d u c a t i o n ,
402 U .S . 1 (1 9 7 1 ) . . . . . . . . . . . . . 1 1 , 1 5 , 21, 22, 23, 25,26,27
U S A v . B o a r d o f S c h o o l C o m m i s s i o n e r s o f t h e C i t y o f
I n d i a n a p o l i s (S .D . In d ., 19 7 1 ) 332 F . S u p p . 655 ..6 ,11
U S A & B u c k l e y e t a l v . B o a r d o f S c h o o l C o m m i s
s i o n e r s o f t h e C i t y o f I n d i a n a p o l i s , e t a l . (N o . 73-
1968 th rou gh 7 3 -1 9 8 4 ) ............................................... 6 ,9 ,1 0 ,1 4 ,2 0
U . S . v . S c o t l a n d N e c k C i t y B o a r d o f E d u c a t i o n , 407
U .S . 4 8 4 (1 9 7 2 ) . 7 .......................................................................... 29
W r i g h t v . C o u n c i l o f E m p o r i a , 407 U .S . 451 (1972)
C on stitu tion o f S tate o f In d ian a , A rtic le 8,
S ection 1 ............................................... ......................................... 27,29
1Y
TABLE OF AUTHORITIES— Continued
Cases—continued P age
CONSTITUTIONAL PROVISIONS
Article 8, Section 1 o f the C on stitu tion o f the State
of Indiana .............................................................................................. 7
Fifth A m endm ent to the U n ite d S ta tes C onstitution . . 3
Fourteenth A m en d m en t to the U n ited S ta tes C on
stitution ............................................................................4 ,1 2 , 26, 28, 31
Tenth A m endm ent to the U n ited S tates C onstitution . . 29
STATUTES
28 U .S .C . § 1 2 5 4 ( 1 ) ............................................................................ 2
28 U .S .C . § 1 3 4 3 ( 3 ) ............................................................................ 12
28 U .S.C. § 2201 .................................................................................... 12
28 U .S.C . § 2202 .................................................................................... 12
42 U .S .C . § 1 9 8 3 .................................................................................... 12
42 U .S.C. § 1988 .................................................................................... 12
42 U .S .C . § 2000c-6 ............................................................................. 5
Rule 42 o f the R u les o f the S u p rem e C ourt o f the
United States ...................................................................................... 2
OTHER AUTHORITIES
United States D ep a rtm en t o f H E W
Digest of Educational Statistics, 1971 ed........................... 30
v
IN THE
Supreme Court o f The United States
October Term, 1973
WILLIAM 0. M ILLIKEN, et al., )
P e t i t i o n e r s , )
vs. ) No. 73-434
RONALD G. B R A D L E Y , et a l., )
R e s p o n d e n t s , )
)
ALLEN P A R K P U B L I C S C H O O L S , et al., )
P e t i t i o n e r s , )
vs. ) No. 73-435
RONALD G. B R A D L E Y , et al., )
R e s p o n d e n t s , )
)
THE G R O S S E P O I N T E P U B L I C S C H O O L )
S Y S T E M , et al., )
P e t i t i o n e r s , )
vs. ) No. 73-436
RONALD G. B R A D L E Y , et al., )
R e s p o n d e n t s , )
BRIEF ON THE MERITS IN SUPPORT
OF PETITIONERS SUBMITTED AMICUS
CURIAE BY THE STATE OF INDIANA
The State o f In dian a , b y T h eodore L . Sendak, A tto rn e y
General of Indiana, D on ald P . B o g a rd , D ep u ty A tto rn e y
General and W illia m F . H a rv e y , S p ecial Counsel fo r the
Attorney General, pu rsu an t to R u le 42 o f the R ules o f the
Supreme Court o f the U n ite d S ta tes , subm its its b rie f
amicus curiae in su pp ort o f the P etition ers in the above-
entitled cause.
1
2
OPINION BELOW
T h e opinion below , file d b y the U n ited S tates Court of
A p p e a ls fo r the S ix th C irenit (h ereafter S ix th Circuit) is
rep orted as Bradley v. Millihen, (6 th C ir., 1973) 484 F.2d
215 (C e rtio ra ri J o in t A p p e n d ix pp. 110 a -2 40 a ) (hereafter
cert. a p p .) .
JURISDICTION
T he U n ited S ta tes S up rem e C ou rt h as jurisdiction to
review this case b y w rit o f certiorari p u rsu an t to 28 U.S.C.
§ 1 2 5 4 (1 ) , and has accepted it fo r such purp oses by grant
in g said w rit on N ovem b er 19, 1973.
CONSENT OF PARTIES
T h is am icus b r ie f b y the S ta te o f In d ian a is filed pur
suant to R u le 42 o f the R u les o f the U n ited S tates Supreme
C ou rt and consent o f the p arties is n ot required pursuant to
R u le 4 2 ( 4 ) .
QUESTIONS PRESENTED
I .
W h eth e r , in a school d esegregation case involving a
m etrop olitan area in w hich one school system has been
fou n d to be de jure segregated and all other districts found
n ot to be de ju re segregated , a fed era l district court can
enter orders reg ard in g the tra n sfe r or exchange of pupils,
again st those other school system s or districts which are
g eog ra p h ica lly close to the segregated system when there
is no fin d in g a gain st those school system s or districts, no
fin d in g th at th ey w ere fo rm ed as a p art o f a state sup
p orted de jure segregated system , and no fin d in g that they
exist in order to p erpetu ate such a system , when those
3
orders have the e ffe c t o f d evelop in g m assive b using and
student transfer p ro gra m s am on g the variou s d istricts
and which w ere entered so lely to establish a court-
acceptable “ d eseg re g a tio n ” plan in the one segregated
school system ?
II.
Whether the state can be com pelled to entirely reorga
nize local school d istricts in m etrop olitan areas w ithin the
state in order to rem ove only black children fro m one school
system and only w hite children fr o m another school sy s
tem and exchange them betw een system s w hen only one
school system w as fou n d to be illega lly segregated , when
there were no fin d in gs a ga in st an y other school system
and when the only a lleged ‘ ‘ act ’ ’ o f the ‘ ‘ S tate ’ ’ w as p ur
ported to have been com m itted en tirely w ithin the ille
gally segregated system , but w hich in fa c t had no causal
connection w hatever upon racial p ercentages or num bers
in any school system .
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The F ifth A m en d m en t to the U n ited S tates Constitution
provides as fo llo w s :
“ No person sh all be held to answ er fo r a capital,
or otherwise in fam ou s crim e, unless on a presentm ent
or indictm ent b y a gran d ju ry , except in cases arisin g
in the land or n av a l fo rces, or in the m ilitia , when in
actual service in tim e o f w a r or public d a n g e r ; nor
shall any p erson be su bject fo r the sam e offen ce to be
twice put in je o p a rd y o f life or lim b ; nor shall be com
pelled in any crim inal case to be a w itness again st h im
self ; nor be d eprived o f life , liberty , or p roperty , w ith
out due process o f la w ; n or shall p rivate p ro p erty be
taken fo r public use, w ithout ju s t com pensation.
4
T he F ou rteen th A m en d m en t to the U n ite d States Con
stitu tion p rovid es in p a rt as fo llo w s :
§ 1. A l l p erson s b orn or n atu ra lized in the United
S ta tes , and su bject to the ju risd ictio n th ereof, are citi
zens o f the U n ite d S ta tes and o f the state wherein they
reside. N o state shall m ake or enforce any law which
shall abridge the p riv ileg es or im m u n ities o f citizens
o f the U n ite d S t a t e s ; n or sh all an y state deprive any
p erson o f life , liberty , o r p ro p erty , w ithout due process
o f la w ; nor d eny to an y p erson w ithin its jurisdiction
the equal p rotection o f the law s.
§ 5. T h e congress shall h ave pow er to enforce, hy
a p p rop riate leg isla tion , the p rovision s o f this article,
T h e C ivil E ig h t A c t o f 1964 , 42 U .S .C . § 2000c provides
in p art as fo llo w s :
§ 2000c. D efin itio n s
A s u sed in this subchapter—
(a) “ Commissioner” means the Commissioner of
education.
(b ) “ D e se g re g a tio n ” m ean s the assignm ent of stu
dents to public schools and -within such schools without
reg ard to their race, color, relig ion , or national origin,
but “ d e se g re g a tio n ” shall n ot m ean the assignment
o f students to public schools in order to overcome
racia l im balance.
(c ) “ P u b lic sc h o o l” m eans an y elem entary or sec
on d a ry educational institu tion , and “ public college”
m eans an y in stitu tion o f h igher education or any tech
nical or vocation al school above the secondary school
level, p rovid ed th at such public school or public col
lege is operated b y a S ta te , su bd ivision o f a State, or
govern m en ta l agen cy w ithin a S tate , or operated wholly
or p red om in an tly fro m or th rou gh the use o f govern
m en tal fu n d s or p ro p erty , or fu n d s or p rop erty derived
fro m a govern m en ta l source.
5
(d ) “ S chool b o a r d ” m eans an y agen cy or agencies
which adm inister a system o f one or m ore public
schools and an y other agen cy w hich is responsible fo r
the assignm ent o f students to or w ithin such system .
Pub.L. 88 -352 , T itle I V , § 401 , J u ly 2 ,1 9 6 4 , 78 S ta t. 246.
§ 2000c-6.
(a ) W h en e v e r the A tto r n e y G en eral receives a com
plaint in w ritin g—
(1) sign ed b y a p aren t or group o f p aren ts to the
effect th at his or their m in o r children, as m em bers
of a class o f p erson s sim ila rly situated, are being
deprived b y a school b oard o f the equal protection
of the law s, . . .
and the A tto r n e y G en eral believes the com plaint is
m eritorious and certifies . . . th at the institution of
any action w ill m a te ria lly fu rth er the o rd erly achieve
ment o f d esegregation in public education, the A t to r
ney G eneral is authorized , a fte r g iv in g notice o f such
complaint to the a p p rop riate school board or college
authority and a fte r ce rtify in g th at he is satisfied that
such board or au th o rity h as had a reasonable tim e to
adjust the conditions alleged in such com plaint, to in
stitute fo r or in the nam e o f the U n ited S tates a civil
action in an y a p p rop riate d istrict court o f the U n ited
States again st such p arties and fo r such re lie f as
may be appr opriate, and such court shall have and shall
exercise ju risd ictio n o f proceed in gs instituted p u r
suant to this section , p ro vid ed th at nothing herein
shall em pow er a n y o ffic ia l or court o f the U n ited
States to issue a n y ord er seeking to achieve a racial
balance in an y school b y req u irin g the tran sportation
of pupils or students fr o m one school to another or one
school d istrict to another in ord er to achieve such
racial balance, or otherw ise enlarge the existin g pow er
of the court to in su re com pliance w ith constitutional
standards. T he A tto r n e y G en eral m a y im p lead as de
fendants such add ition al p arties as are or becom e nec
essary to the g ra n t o f e ffective re lie f hereunder.
6
INTEREST OF THE AMICUS CURIAE
T h e S ta te o f In d ian a subm its its b r ie f am icus curiae
since th is case in volves sim ilar questions o f law to a case
a risin g out o f In d ian a w hich is cu rren tly on appeal to the
U n ited S ta te s C ou rt o f A p p e a ls fo r the Seventh Circuit
(h e re a fte r S even th C irc u it). U . S . A . & B u c k l e y e t a l . v .
B o a r d o f S c h o o l C o m m i s s i o n e r s o f t h e C i t y o f I n d i a n a p o l i s ,
e t a l . , (N o . 73 -1968 th rou gh 73 -1 9 8 4 ) (h ereafter Indianap
o lis ) . In th at case neither the S ta te o f In d ian a nor the In
d ian a G en eral A s s e m b ly w ere nam ed p arties. However,
n am ed as added d efend ants in the court below — the United
S ta tes D istr ic t C ou rt fo r the S ou th ern D istrict o f Indiana
(h ereafter D istr ic t C o u r t)— w ere O tis R . B ow en, as Gov
ernor o f the S tate o f In dian a , T h eod ore L . Sendak, as At
to rn ey G en eral o f the S tate o f In d ian a , H a ro ld H . Negley,
as Sup erin tend en t o f P u b lic In stru ction o f the State of In
diana, and the In d ia n a S ta te B o a rd o f E d u cation , a public
corporate b od y (h e re a fte r S tate D e fe n d a n ts ). The State
D e fen d an ts w ere added to the law su it a fte r the District
C ou rt had m ade a fin d in g o f d e j u r e segregation oil the
p a rt o f the In d ian ap olis P u b lic School S ystem (hereafter
I P S ) , 332 F . S u p p . 655, (1 9 7 1 ) , and w hich w as properly on
ap p eal to the S even th C ircuit a t the tim e the State Defend
ants and nineteen school d istricts w ere added as
defend ants.
T h e In d ian a case, like the case a t bar, is an extremely
com plex piece o f school d esegregation litigation involving
the tra n sfe r or exchange o f p up ils fro m I P S which has been
fou n d g u ilty o f d e j u r e segregation , across township,
county, city, and tow n bou n daries to tw enty-three other
school d istricts in eight (8 ) counties fou n d n o t to be guilty
o f an y d e j u r e vio lation s.
7
The State o f In d ian a , pu rsu an t to its C onstitution ,
Article 8, Section 1 (1 8 5 1 ) , and statutes d uly enacted, has
provided for a system o f com m on schools w herein tuition
shall be w ithout charge and ‘ ‘ eq ually open to all. ’ ’ T he e f
fectuation o f those p rovision s h as alw ays been in the de
velopment and control o f the local schools in the S tate o f
Indiana, since school system s are created locally , controlled
locally, and are p rim a rily fin an ced locally (b y issuance o f
their own school bonds and the taxation o f local p ro p e rty ).
The function o f the S tate agencies in education, such as the
Office of the Sup erin tend en t o f P u blic In struction and the
Indiana State B o a rd o f E d u cation , is a service function
designed to a ssist the local schools in their variou s indi
vidual program s.
In the In dian apolis S ta n d a rd M etropolitan Statistica l
Area (hereafter I S M S A ) there are 44 independent school
systems with a tota l 1972 enrollm ent o f app roxim ately
261,482 school children. T w en ty -on e (2 1 ) o f those school
systems are now in volved in litigation in the D istrict Court
and in the Seventh C ircuit in a case w hich is sim ilar to
this case. The enrollm ent o f those tw enty-one (2 1 ) school
systems fo r 1972 w as ap p ro x im a te ly 205,175 school children,
(attached appendix fo llo w in g p. A -6 3 ) .
The disposition o f the D etro it case in the S ixth Circuit
has caused a v e ry serious th reat to the continued existence
of the school system s in the I S M S A , m a n y o f w hich have
existed in their p resent or p redecessor fo rm since before
the Civil W a r , and as ea rly as 1838.
The prim ary in terest o f the am icus is in explaining to
this Court how the D e tro it case a ffe c ts those In dian a school
systems, and w h y the S ix th C ircuit in the decision below
was incorrect and should be reversed .
The purpose o f the am icus is also to su ggest to this Court
that the decision now p resented fo r review is o f a sign ifi-
8
cance w hich equals th at o f Brown v. Board of Education,
347 U .S . 483 (1 9 5 4 ) . T h e resu lt here cau have the effect of
placing- a lm o st the w hole o f m etro p olita n development in
the U n ited S ta tes under a fe d e ra l ju d icia l superin
tendency, and such a case p re v io u sly h as n ot been before
this C ou rt. T h is e ffe c t has s ta g g e rin g im plications, as is
evident fr o m exam in in g the attached U n ite d States Bureau
o f Census C h arts o f u rban ized areas in Indiana, Illinois
and M ich ig an fr o m the 1970 census (attach ed appendix
fo llo w in g p . A -6 3 ) .
T h e am icus b r ie f is lim ited in its p r im a ry discussion to
th at p a rt o f the C ou rt o f A p p e a ls opinion w hich permits the
develop m en t o f a “ M etro p o lita n A r e a D esegregation Plan,’
4 84 F .2 d 215 , 2 50 Cert. A p p . a t p age 173a, fo r the Detroit
M e tro p o lita n area.
In this case, unlike K eyes v. School District No. 1, 93
S .C t. 2686 (1 9 7 3 ) , there are m u lti-sch ool districts involved,
a gain st w hich no fin d in g o f racia l d iscrim in ation has been
entered, b u t like K eyes, there w as a fin d in g o f discrimina
tion in one school d istrict. U n lik e Bradley v. School Board
of Richmond, Virginia, 462 F .2 d 1058 (4 th C ir. 1972), a ff’d,
93 S .C t. 1952 (1 9 7 3 ) , there is no h isto ry o f racial discrimi
n ation in the add ition al school d istrict defendant-inter--
ven ors, and no fin d in g th at the o u t-o f-D e tro it City schools
are or ever h ave been an yth in g other than integrated
school system s. S im ilar to Richmond is the percentage of
blacks in the city school system s, w ith the D etroit School
C ity b ein g about 6 4 % black, and 'Rich m ond about 70%
black. A ls o , as in Richmond, the D e tro it school city can
d esegregate now and elim inate ra cia lly identifiable schools.
In the Indianapolis case, the IPS schools are 4 0 % black
and 6 0 % white.
9
This case com m enced as a school d esegregation case
against the D e tro it C ity S ch ool system , and the district
court wishes to end it as a case w hich alters the racial
imbalance betw een th at school sy stem and the added de-
fendant-imtervenors. In that w a y it is m uch like the Indi
anapolis case (see attached A p p e n d ix , p p . 11 and 1 2 ) , and
much like Spencer v. Kugler, 326 F .S u p p . 1235, (D .N .J .
1971), a f f ’d, 404 U .S . 1027 (1 9 7 2 ) , in w hich this C o u rt re
jected an attack m ade u pon the racial im balance fon nd in
New Jersey school system s.
The essential fa c t in this case is n ot that the D etro it C ity
schools w ere segregated , accord in g to the d istrict court, hut
that the added school system s w ere n ot fou n d to be segre
gated. Those school system s are to ca rry the ju d icia l b u r
den. They w ere n ot h eard , w ere not tried, and w ere not
present at tr ia l; no evidence w as o ffe re d a ga in st them , and
no findings w ere m ad e a ga in st them . N everth eless, they
are the subject o f the d istrict c o u rt ’s orders in D etroit.
The critical fa ctu al d ifferen ce betw een this case and
Indianapolis is that in the Indianapolis case, a fte r I P S had
been found to be g u ilty o f de jure segregation in the fir s t
lawsuit (see attached ap p en d ix p . A -5 ) and had appealed
that finding to the S even th C ircuit, the added school de
fendants and the S tate D efen d an ts w ere b rou gh t into court
m a second law su it (see attached ap p en d ix p . A -6 ) b y a
Complaint in In terven tion and an A m en d ed C om p lain t in
Intervention and did p resen t evidence, did have an op p or
tunity to cross exam ine, and those added school districts
were found not to he segregated school systems. N everth e
less, principally on the b asis o f the S ix th C irc u it ’s decision
m this case (see attached appen dix, p. A -2 2 ) orders w ere
entered against the added school d istricts. In the m ost
1 0
recent d istrict court en try in Indianapolis (see Supple
m en tal D ecision , attached app en dix , p . A -6 1 ) the court has
“ d e la y e d ” action- (a s in M ic h ig a n ), p end in g action by the
In d ian a G en eral A sse m b ly , and i f the G en eral Assembly
“ d e fa u lts ” then the d istrict court has stated it will act. As
in Michigan there w as no constitution al v iolation by any
added d efen d an t school d istrict, but substantial orders
have been entered a ga in st th em w hich have been vacated,
but w hich on F e b ru a r y 16, 1974, w ill rise in an even greater
m agnitu d e than as o rig in ally ordered.
A.
Michigan
T h ere are tw o categories o f d efend ants in this case when
exam ined p u rsu an t to the requirem ent that a constitutional
w ron g be fou nd . F ir s t , there are the state defendants; the
G overn or, the A tto rn e y G eneral, the S tate B o a rd of Edu
cation, and the S up erin tend en t o f the D etroit Public
Schools. T he d istrict court entered fin d in gs o f de jure
segregation a gain st the D etro it C ity defendants, with in
volvem en t b y the S tate o f M ich igan o ffic ia ls , 338 F.Supp.
582, a f f ’d, 4 84 F .2 d 215, 258 (1 9 7 3 ) , C ert. A p p . 189a.
S econ d ly , there is the “ W a y n e , O akland, and Macomb
counties g r o u p ,” w hich consists o f 53 separate and inde
pendent school system s. T h is grou p includes 780,000 school
children and their p aren ts, and could p ossib ly include as
m a n y as 85 sep arate and in depen den t school systems
w ith an enrollm ent o f ap p ro x im a te ly 1 ,000 ,000 pupils cov
erin g an area o f a p p ro x im a te ly 1 ,952 square miles (Peti
tion fo r C ertiorari, M ich igan , p ages 5, 19, 5 2 ) . Against this
grou p , except fo r the School C ity o f D etroit, there were
no fin d in gs o f illega l segregation entered, and in fact no
such fin d in gs at all.
1 1
Nevertheless, because th at group o f school system s and
school children ex ist in close p ro x im ity to the D etro it
Public Schools th ey w ere m ad e available fo r e ffectin g a
Detroit rem edy. I n short, a rem ed y h as been im posed
without a w ron g. C om p are, Swann v. Gharlotte-Mechlen-
hirg Board of Education, 402 U .S . 1 (1 9 7 1 ).
B .
Indiana
The Indianapolis case com m enced on M a y 31, 1968, w hen
the United S tates o f A m e ric a file d a C om plaint in the
District Court w hich w as assign ed cause num ber IP -6 8 -C -
225. The action b y the U n ite d S ta tes w as brou ght pursuant
to 42 U .S .C . § 2 0 0 0 c -6 (a ) and (b ) , and w as tried b y the
Court on J u ly 12 -21 , 1971 , D efen d an ts in the aforem en
tioned com plaint w ere T h e B o a rd o f School C om m issioners
of the City o f In d ian ap olis , In dian a , its Superintendent o f
Schools, and m em bers o f its B o a rd .
On A u gust 18, 1971, the C ou rt issu ed its “ M em oran dum
of Decision” p erm an en tly en join ing defendants, their suc
cessors in o ffice , o ffic e rs , agen ts, em ployees and all those
in active concert or p artic ip ation w ith them fro m “ dis
criminating on the b asis o f race in the operation o f the
Indianapolis School S y s te m ,” and fu rth er ordered the
defendants to take seven steps to “ fu lfill their a ffirm ative
duty to achieve a n on d iscrim in atory school sy ste m .” 332 F .
Supp, 655, 680. A f f ir m e d 474 F .2 d 81 (7 th C ir., 1 9 7 3 ).
Cert, denied 407 U .S . 920 , 93 S .C t. 3066 (1 9 7 3 ).
A part o f the D istr ic t C o u r t ’ s fin d in gs in the f ir s t In d i
anapolis case w as that that school b oard constructed three
high school buildings in 1961, 1963, and 1967, the placem ent
of which constituted acts o f de jure segregation .
1 2
O n S ep tem b er 10, 1971 , the d efend ants file d their Notice
o f A p p e a l to this C ou rt fr o m the fin a l ju d gm en t entered
on A u g u s t 18, 1971.
O n S eptem b er 14, 1971 , a “ M otion to In terven e as Party
P la in t i f f” and a C om p la in t in In terven tion w ere filed by
D o n n y B r u re ll B u ck ley and A ly c ia M arq u ese Buckley who
p u rp orted to intervene as rep resen tatives o f a class com
p rised o f N e g ro school age children in M a rio n County,
In d ian a w ho attended only I P S .
O n O ctober 21, 1971, an A m en d ed C om p lain t w as filed by
in terven in g p la in tiffs w hich n am ed E d g a r D . W hitcom b, as
G overn or o f the S tate o f In d ian a , T h eodore L . Sendak, as
A tto r n e y G en eral o f the S tate o f In d ian a , and T he Indiana
S tate B o a rd o f E d u cation , a public corporate body, as
added defend ants. J u risd iction under the A m en ded Com
p lain t w as extended to include 42 U .S .C . § § 1983 and 1988,
28 U .S .C . § § 1 3 4 3 (3 ) , 2201 and 2202, and the Fourteenth
A m e n d m e n t to the U n ited S tates C onstitution .
A tr ia l w as held on the A m en d ed C om p lain t and An
sw ers thereto on June 12, 1973 th rou gh J u ly 6, 1973, and
w as reopen ed b y the court on its ow n m otion on July 18,
1973. In that tr ia l the p arties w ere as fo llo w s :
1 .
Indianapolis Public School System
Marion County, Indiana
T h e I P S sy stem is one o f eleven (1 1 ) in Marion
C ou n ty, In d ian a , and is the tw en ty-n ineth largest in
the U n ited S tates. In its 1972 -73 enrollm ent the IPS
sy stem had 97 ,833 students w ith a racial c o m p o s i t i o n
o f 6 0 percent white and 4 0 percent black. I f re
organ ized u tilizin g all availab le students in the
I S M S A it w ou ld be the f if th la rg e st school district
in the U n ited S ta tes , f it t in g betw een Philadelphia and
the current D etro it system .
1 3
Seventeen d ays b efore the com m encem ent o f tbe
second tria l, the D istr ic t C ou rt held its fin d in gs in
the fir s t tria l w ere res ju d ica ta in tbe second trial,
hence the fin d in gs a ga in st I P S stood as before.
2.
S tate Officials in Indiana
In the second tr ia l the in terven in g p la in tiffs added
the G overnor, the A tto r n e y G eneral, the In d ian a State
Board o f E d u cation , and the Superintendent o f Public
Instruction as added defend ants. F in d in gs w ere
entered a ga in st on ly the la tter tw o p arties, and those
findings w ere th at the fin d in gs a gain st I P S in the
first tria l, i.e ., th at the p lacem ent o f three h igh schools
constructed in 1961, 1963 , and 1967, constituted acts
of cle jure seg rega tio n w hich w ere “ im p u te d ” to the
state o ffic ia ls because th ere w as in the S tate B o a rd
of E du cation a p ow er to review and app rove site selec
tions fo r p u rp oses o f in su rin g m in im u m health and
safety standards. T h ese w ere the only fin d in gs again st
any State o ffic ia ls in In d ian a . (A tta c h e d appendix,
p. A -2 2 )
3.
Additional School Districts Within
Marion County, Indiana
There are ten (1 0 ) school system s located in M arion
County, In d ian a , in addition to I P S . O f those, eight
(8) are tow nship schools and tw o are school system s
for the C ity o f B eech G rove, In d ian a and the T ow n
of Speedw ay, In d ian a . T h eir com bined enrollm ent in
1972-73 w as a p p ro x im a te ly 77 ,611 school children.
These school system s h ave n ever been illega lly segre
gated nor have th ey ever operated dual school system s,
and the D istrict C ou rt so fou nd . (A tta ch ed appendix,
p. A -2 3 ) .
1 4
Additional School Districts Outside
Marion County, Indiana
T h ere are ten (1 0 ) school d istricts located outside
M a rio n C ou n ty , In d ian a , in six (6 ) other counties,
w hich w ere n ever a p a r t o f a n y M a rio n County school
system , and w hich, in several instances, have existed
since b efore the C iv il W a r . T h e ir com bined 1972-73
enrollm ent w as a p p ro x im a te ly 27 ,131 school children,
T h ese schools h ave n ever been segregated nor have
th ey ever operated dual school system s, and the
D istr ic t C o u rt so fou n d . (A tta c h e d appendix, p,
A -2 3 ) .
O n J u ly 20, 1973 the D istr ic t C ou rt issu ed its “ Memo
rand u m o f D e c is io n .” See attached A p p e n d ix , p. A -l. In
th at D ecision the C ou rt fou n d acts o f de jure segregation
on the p a rt o f the In d ian ap olis P u b lic Schools in the place
m en t o f three (3 ) h igh schools, and that those acts were
im p u ted to the In d ian a S tate B o a rd o f E d u cation and the
S tate S u p erin ten d en t o f P u blic In stru ction . However, the
C ou rt fou n d th at there w ere no de jure acts o f segregation
attribu table to the added d efen d an t school districts. The
D istr ic t C ou rt also fou n d th at the d esegregation of the In
d ianap olis P u b lic School S y stem cannot be accomplished
w ith its ow n b ou n daries p rim a rily because o f the possibility
o f reseg reg a tio n “ w ithin a m a tter o f tw o or three years.”
T he D istrict C ou rt in the Indianapolis case stated that
it w as possible to d esegregate I P S w ithin its own boun
daries, sta tin g at p age 7 o f its D e c is io n :
“ In other w ord s, it is ap p aren t that as a sheer exer
cise in m ath em atics, it w ou ld be p ossib le fo r this Court
to ord er d esegregation o f I P S on a 5 8 .9 % -4 1 .1 % basis,
or som e b asis sim ilar thereto, so th at no school could,
fo r the tim e being, be ra cia lly id en tifiab le as a black
s c h o o l. . . ” (attach ed ap p en d ix p . A -1 2 ) .
4.
1 5
But, contrary to G r e e n v . C o u n t y S c h o o l B o a r d o f N e w
K e n t C o u n t y , V i r g i n i a , 391 U .S . 430 (1 9 6 8 ) and S w a n n v .
C h a r l o t t e - M e c M e n b u r g B o a r d o f E d u c a t i o n , s u p r a , the D is
trict Court w as n ot look in g fo r a p lan th at p rom ises rea l
istically to w ork n o i v , but one th at p rom ises to w ork fo r all
time.
Further, in that D ecision , the D istrict C ou rt stated in
Conclusion o f L a w num ber 2 on p age 22 (attached appen
dix, p. A -2 6 ) :
“ The Superin tenden t o f P u blic In struction , T he In
diana State B o a rd o f E d u cation , and other responsible
agents and agencies o f the S ta te o f In dian a , and the
State itself, have each practiced d e j u r e segregation ,
both by com m ission and o m issio n .”
yet the Court n ever ordered any o f the above to do any
specific acts.
In part V , page 17 o f the M em oran d u m o f D ecision (a t
tached appendix, p. A -2 3 ) , the D istrict C ou rt stated :
“ There w as no evidence th at any o f the added de
fendant school corporation s have com m itted acts o f
d e j u r e segregation directed a gain st N eg ro students
living w ithin their respective b o r d e r s .”
yet the Court ordered th at each o f the added defendant
school corporations w as d irected to accept N egro tran sfer
students from the In d ian ap olis P u b lic Schools at the rate
of 5% of their 1972-73 enrollm ent, except fo r W a sh in g to n
Township, and P ike T ow n sh ip w here the rates w ere 1 %
and 2 % respectively.
Also, the In dian apolis P u b lic School system w as ordered
to rearrange the enrollm ent p atterns o f its elem entary
schools so that each school, at the beginning o f the 1973-
74 school year, had a m in im u m N eg ro enrollm ent o f 1 5 % .
1 6
F o u r (4 ) sep arate m otion s fo r sta y o f the ord er of July
20, 1973 w ere file d b y the d efend ants and added defendants
b efore A u g u s t 6, 1973 , and on A u g u s t 8, 1973 , in open
court, the D istr ic t C ou rt o ra lly sta y ed said order as it per
ta in ed to the tra n sfe r o f I P S students to the added defend
an ts, b u t did n ot s ta y th at p a r t o f the O rd er th at pertained
to the In d ian a p o lis P u b lic Schools.
N o tices o f appeal w ere fille d b y the orig in al defendants
and all added d efen d an ts b y A u g u s t 16 , 1973 . However,
on S ep tem b er 4, 1973 , the C ou rt gran ted in terven in g plain
t i f f s ’ m o tio n fo r leave to in terp lead a second class o f added
d efen d an ts, and another A m e n d e d C om p lain t w as filed on
th at d ate . T h e U n ite d S ta te s o f A m erica , the O riginal plain
t i f f , file d its notice o f ap p eal on S ep tem b er 18, 1973.
B r ie fs w ere file d in the S even th C ircuit b y a ll appellants
on or b efore D ecem ber 10, 1973. H o w ev er , on December 6,
1973, the D istr ic t C ou rt issu ed its “ S u p p lem en tal Memo
rand u m o f D e c is io n ” (h e re a fte r S u p p lem en tal Decision)
w hich vacated the ord ers in the J u ly 20, 1973, Decision that
h ad been stayed on A u g u st 8, 1973 , reg ard in g the transfer
o f p up ils fro m I P S to the added d efen d an t School Districts.
See attached app en dix , p. A -3 9 . In th at Supplem en tal Deci
sion the D istr ic t C ou rt gave the In d ian a G en eral Assembly
u ntil the end o f the 1974 leg isla tive session or February
15, 1974, w hichever com es fir s t , to enact a metropolitan
school d esegregation p lan. I f the G en eral A sse m b ly should
“ d e fa u lt” in its “ d u ty ” to fin d a p erm an en t solution to
the d esegregation o f I P S into tw en ty-th ree (2 3 ) separate
and d istin ct school d istricts fou n d n ot to be gu ilty of any
de jure segregation , then the D istr ic t C ou rt w ill devise its
ow n plan.
T h u s, even th ou gh n either the S ta te o f In d ian a nor the
G en eral A sse m b ly w ere p arties to the fo re g o in g litigation,
1 7
it is certain th at i f the G en eral A sse m b ly does n ot enact
some type o f m etrop olitan p la n w hich is suitable to the D is
trict Court the C ou rt w ill d ra ft such a plan . T herefore , the
Indianapolis m etro p olita n area faces a m a jo r school re
organization w hich could include eight (8 ) counties and
from tw en ty-fou r (2 4 ) to fo r ty -fo u r (4 4 ) separate and in
dependent school d istricts w ith a to ta l p up il population o f
from ap p roxim ately 2 0 5 ,000 students to 260 ,000 students,
all o f which w ou ld be d irected b y a d istrict court ju dge
whom the S ta te o f In d ian a w ou ld assert is to ta lly w ithout
power to so act.
There w as no contention m ad e th at the Indianapolis
Public School system can n ot now e ffe c t a desegregation
plan, or th at it is n ot p rep ared to do so. T h e Indianapolis
federal d istrict court, like D etro it, has involved the addi
tional school sy stem because it w ants a p lan w hich once
implemented w ill “ w ork fo r e v e r ” and w hich w ill place
black students in a p erp etu al m in o rity in all schools in the
Indianapolis m etrop olitan area.
The D istrict C ou rt fu rth er dem ands this in face o f the
fact that the I P S system has about 9 percent o f the entire
assessed school v a lu a tio n fo r the State o f In dian a , and that
it has the fin an cia l cap acity to raise over $100,000 ,000 fo r
the construction o f new schools, should it decide to do so.
(See attached ap p en d ix fo llo w in g p. A -6 3 ) .
In short, th at the I P S system can now d esegregate is
not contestable. T h e concern o f the D istrict C ourt w as that
it might n ot w ork fo re v e r , and it has entered orders against
the additional school defend ants a fte r fin d in g that they
did not com m it acts o f d iscrim in ation and w ere not ille
gally segregated or de ju re segregated school system s.
1 8
C.
Indiana and Michigan Compared
First, concerning the additional school defendants in
these cases, in Michigan there was no evidence and no find
ings against those school systems. In Indiana the District
Court found that they were not d e j u r e segregated sys
tems. In each case the district court has either entered
orders against them, or will do so, regardless of the ab
sence o f evidence or the finding of no discrimination by
them.
Secondly, concerning the state school boards and offi
cials, in Indiana the only connection with the “ State”
(which was never a party to the action) was the site ap
proval given to three high schools in the IPS system. In
Michigan, the principal connection was the enactment of
a statute affecting the Detroit Public School system. In
neither case was there any showing that the “ state acts”
had any causal connection to the racial composition of
either school system, and there was o f course no showing,
nor could there have been, that in either Michigan or Indi
ana the “ state acts” had any effect in any other school
district in either the Detroit or Indianapolis area. In
neither case is the argument made that the existence of the
school district themselves caused racial discrimination and
segregation, or that they were created for those purposes
or to impede the removal of the vestiges of a dual system.
The Sixth Circuit held however, that the absence of a dual
system among school districts was insignificant, because
it “ follows logically that existing boundary lines cannot
be frozen for an unconstitutional purposes” 484 F.2d at
250.
The above-quoted statement is o f course true. But either
the Sixth Circuit’s statement has no relevance to this case,
1 9
or, if it remains a controlling holding, the fact that the
added school defendants in Detroit were not found to he
dual school systems is no longer significant to this type of
litigation. I f this is to become the law from this Court,
then federal equity power in this type o f litigation is no
longer founded upon the duty to desegregate, after a find
ing of illegal state compelled segregation.
D.
The Metropolitan Remedy
The essential fact in the Indiana case is not that the
Indianapolis Public School system was illegally segre
gated, or that it can now be desegregated. It is that the
additional school district defendants were not segregated
and the district court entered a finding to that effect. After
that finding it entered orders against them.
The process by which this was accomplished was the
same process used by the district court in Detroit. It is as
follows: (1) education is a state public function because it
is developed pursuant to state law from the state govern
mental power; (2) acts by state officials are public acts;
(3) acts by local school boards are imputable to state edu
cation officials, whenever they occur with or without
knowledge on the part of the state education official; (4)
when the imputed act has occurred, or when a de jure act
is taken by the state official or legislature, then the dis
trict court has judicial power over the public function of
education in as many school systems as are “ conveniently”
reached by a school bus; and (5) that that power will be
asserted unless the state acts in a way consistent with the
district court ’s desire.
The district court in Detroit would effect a metropolitan
remedy [“ provided, however, that existing administra-
2 0
tive, financial, contractnal, property and governance ar
rangement shall be examined, and recommendations for
their temporary and permanent retention or modification
shall be made * * * ” 345 F.Supp. 914, at .919, a ff’d but
partly vacated, 484 F.2d at page 252 (1973)], and the dis
trict court in I n d i a n a p o l i s would effect the same type of
remedy, (see attached appendix, p. A-61-).
This will occur not because o f segregation in the school
systems in those two cities, nor because among those sys
tems segregation existed, nor because they were created to
effect racial discrimination. It will occur, in fact, because
those district courts believe it is desirable to submerge
black students forever in a minority status in the public
school systems in the respective areas. See attached ap
pendix, pp. A-12 and A-58.
The W hite-M ajority Thesis has been rejected in B r u n s o n
v . B o a r d o f T r u s t e e s , 429 F.2d 820, 826 (4th Cir. 1970)
(Judge Sobeloff, concurring) :
“ The invidious nature o f the Pettigrew thesis, ad
vanced by the dissent in the present case, thus emerges.
Its central proposition is that the value of a school de
pends on the characteristics o f a majority of its stu
dents and superiority is related to whiteness, inferior
ity to blackness. Although the theory is couched in
terms o f ‘ socio-economic class’ and the necessity for
the creation o f a ‘middle-class milieu,’ nevertheless,
at bottom it rests on the generalization that, educa
tionally speaking, white pupils are somehow better or
more desirable than black pupils.”
Thus, the essence o f this case, as well as the case in Indi
anapolis, is whether the federal judiciary shall remove local
control o f school systems and school districts, even in the
absence o f racial discrimination in those schools, because
there is a heavy black enrollment (40% black in Indian-
2 1 .
apolis and 64% black in Detroit) in the city school system
involved in the litigation which itself may or may not be
a segregated system. Compare, N o r t h c r o s s v . B d . o f E d .
M e m p h i s , T e n n . , No. 73-1954; No. 73-1667 (6th Cir., Dec. 4,
1973).
Plaintiffs in snch cases will ask for the consolidation
and the redistricting o f schools, and for the busing o f stu
dents to and from systems which were not segregated. That
will mean disregarding governmental boundary lines, not
only for pupil placement but fo r teacher assignment, for
building construction and the taxable base which supports
that construction, and fo r both administrative and voter
control also.
These cases would instigate a more major political and
social upheaval than the progression either from the ‘ ‘ sepa
rate but equal” doctrine of P l e s s y v . F e r g u s o n , 163 D.S.
537 (1896), to the “ separate is inherently unequal” doc
trine of B r o w n I , s u p r a , or from “ freedom of choice” o f
the post-Brown era to the “ affirmative duty” o f G r e e n v .
C o u n t y S c h o o l B o a r d o f N e w K e n t C o u n t y , V i r g i n i a , 391
U.S. 430 (1968), S w a n n , s u p r a , and K e y e s , s u p r a .
STATEMENT OF THE CASE
The amicus accepts the statement of the case as set out
by Petitioners on brief to this Court.
2 2
ARGUMENT
I .
A F E D E R A L D ISTRICT COURT DOES NOT HAVE
TH E PO W ER TO ORDER TH E TRAN SFER OE
EXCH AN GE OF STUDENTS FROM ONE SCHOOL
D ISTR IC T FOUND TO BE GUILTY OF DE JURE
SEGREGATION ACROSS PO LITICAL BOUNDA
R IE S TO OTH ER SCHOOL D ISTRICTS FOUND
NOT TO BE GUILTY OF AN Y DE JURE
VIOLATION S
In. Swann, supra, this Court clearly established the power
o f a district court in a school desegregation case, stating
at page 16:
“ In seeking to define even in broad and general
terms how far this remedial power extends it is im
portant to remember that judicial powers may le
exercised only on the basis of a constitutional violation.
Remedial judicial authority does not put judges auto
matically in the shoes o f school authorities whose
powers are plenary. Judicial authority enters only when
local authority defaults.
. . . As with any equity case, the nature of the viola
tion determines the scope of the remedy. . . . ”
(Emphasis supplied.)
Thus, in this case this Court must examine what the
Sixth Circuit apparently determined was a. constitutional
violation, and in so doing this Court will find that there were
no findings entered against the out-of-city schools. Those
schools were simply brought in to effect a remedy, i.e., the
Sixth Circuit says that the Detroit Schools cannot he de
segregated within their own boundaries, therefore the
2 3
boundaries have to be extended to bring in other school
districts. And the fact that those added districts had not
committed any constitutional violations was immaterial to
the Sixth Circuit.
A similar situation exists in Indianapolis, except that the
District Court there went so far as to enter a finding that
none of the added defendant school districts was guilty of
any discrimination (attached appendix p. A-23). But after
making that finding that District Court proceeded to use
those districts to effect its remedy to desegregate IPS.
In Bradley v. School Board of City of Richmond,
Virginia, supra, the Fourth Circuit said at page 1069:
“ Because we are unable to discern any constitu
tional violation in the establishment and maintenance
of these three school districts, nor any unconstitutional
consequence o f such maintenance, we hold that it was
not within the district judge’s authority to order the
consolidation o f these three separate political sub
divisions of the Commonwealth o f Virginia. . . . ”
See also Spencer v. Kugler, supra.
Therefore, it is quite clear that the Sixth Circuit is
attempting to impose a remedy upon school districts that
are not guilty of any constitutional violations, and that
attempt must be reversed by this Court pursuant to
Swann, supra, Bradley v. School Board of City of Rich
mond, Virginia, supra, and Spencer v. Kugler, supra.
2 4
II.
TH E FO U RTEEN TH AM ENDM ENT DOES NOT
REQUIRE A STA TE TO REM OVE BLACK CHIL
DREN FROM SCHOOLS IN W H ICH TH EY CON
STITU TE A M A JO R ITY OF TH E STUDENTS
ENROLLED, OR A SU BSTAN TIAL MINORITY,
IN ORDER TO M IX THEM W IT H W H IT E CHIL
DREN IN OTH ER SCHOOL DISTRICTS, SO
T H A T TH E B L A C K CHILDREN W ILL ALWAYS
BE IN A R A C IA L MINORITY.
The gist o f the constitutional understanding which the
District Court had in Detroit was clearly stated by that
court:
“ In reality, our courts are called upon, in these cases,
to attain a social goal, through the educational system,
by using law as a lever.” 484 F.2d at 261; Cert. App.
41a.
“ To use the vernacular, ‘ Right o n ! ’ but steady as we
g o .” Cert. App. 41a.
That certainly is not an accurate statement of the law in
school desegregation cases as established by this Court.
A.
THE CONSTITUTIONAL DEFINITION
The cases governing the district court here are, of course,
found from B r o w n 1 , s u p r a to K e y e s , s u p r a :
The constant theme and thrust o f every holding from
Brown I to date is that state-enforced separation of the
races in public schools is discrimination that violated
the Equal Protection Clause. T h e r e m e d y commanded
w a s t o d i s m a n t l e d u a l s c h o o l s y s t e m s .
“ We are concerned in these cases with the elimina
tion of the discrimination inherent in the dual school
systems . . . T h e t a r g e t o f t h e c a s e s f r o m B r o w n I t o
t h e p r e s e n t t e a s t h e d u a l s c h o o l s y s t e m . T h e e l i m i n a
t i o n o f r a c i a l d i s c r i m i n a t i o n i n p u b l i c s c h o o l s i s a l a r g e
t a s k a n d o n e t h a t s h o u l d n o t b e r e t a r d e d b y e f f o r t s t o
a c h i e v e b r o a d e r p u r p o s e s l y i n g b e y o n d t h e j u r i s d i c t i o n
o f s c h o o l a u t h o r i t i e s . One vehicle can carry only a lim
ited amount o f baggage. (Emphasis supplied). S w a n n ,
402 U.S. at 22.
In discussing the extent o f the remedy, the Supreme Court
in Swann made the following observations at page 24:
. . . I f we were to read the holding o f the district court
to require, as a matter o f substantive constitutional
law, any particular degree of racial balance or mixing,
that approach would be disapproved and we would be
obliged to reverse. T h e c o n s t i t u t i o n a l c o m m a n d t o d e
s e g r e g a t e s c h o o l s d o e s n o t m e a n t h a t e v e r y c o m m u n i t y
m u s t a l w a y s r e f l e c t t h e r a c i a l c o m p o s i t i o n o f t h e s c h o o l
s y s t e m a s a w h o l e . ’ (Emphasis supplied.)
And at pages 31 and 32:
At some point, these school authorities and o t h e r s
l i k e t h e m should have achieved full compliance with
this Court’s decision in Brown I. The systems will then
be ‘ unitary’ in the sense required by our decisions in
Green and Alexander.
It does not follow that the communities served by
such systems will remain demographically stable, for
in a growing, mobile society, few will do so. Neither
school authorities nor district courts are constitution
ally required to mate year-by-year adjustments o f the
racial composition o f student bodies * * * (Emphasis
supplied.)
In this case there was no finding that the State attempted
to fix or alter demographic patterns so as to affect the
25
2 6
racial composition o f tlie schools in the Detroit area or in
Michigan in general. Likewise, there was no finding that the
school corporations were established for that purpose, or
that they effected that purpose and were intended to do so.
Compare K e y e s v . S c h o o l D i s t r i c t N o . 1 , 93 S.Ct. 2686, at
2696 (1973).
In short, in B r o w n I , s u p r a , this Court struck down a gov
ernmental policy o f racial segregation which was effected
in the public school system. The Court did not then, and
has not since that time used the Fourteenth Amendment
to develop educational policy.
B r o w n was a case which struck at a government devel
oped racial-social policy o f segregation and discrimination
in the public schools. Such governmental policies meant in
herent inequality which was developed and effectuated, in
part, by use o f public school system. Thus, this Court said,
“ The target of the cases from B r o w n I to the present was
the dual school system.” S w a n n , s u p r a at 22.
But the use of the public school system to develop and
promote a governmental policy o f racial segregation was
only a part of the systematic program. It occurred and was
struck down in public parks, M u i r v . L o u i s v i l l e P a r k T h e
a t r i c a l A s s n . , 347 U.S. 971 (1954), in and on public beaches
and bathhouses, M a y o r a n d C i t y C o u n c i l o f B a l t i m o r e C i t y
v . D a i v s o n , 350 U.S. 877 (1955), municipal golf courses,
H o l m e s v . C i t y o f A t l a n t a , 350 U.S. 879 (1955), and on
municipal buses, G a y l e v . B r o w d e r , 352 U.S. 903 (1956),
all on the authority and the concept o f the B r o w n decision.
The cases which hold that for a B r o w n violation there
must be a state act in creating racial segregation or illegal
separation, rather than adventitious development or demo
graphic qua social alterations, are simply legion. Among
them are: K e y e s v S c h o o l D i s t r i c t N o . 1 , s u p r a ; S p e n c e r v .
2 7
K u g l e r , s u p r a ; B r a d l e y v . S c h o o l B d . o f R i c h m o n d , V i r
g i n i a , s u p r a ; S p r i n g f i e l d S c h o o l C o m m i t t e e v . B a r k s d a l e ,
348 F.2d 261, 264, (1st Cir. 1965); O f f e r m a n v . N i t k o w s k i ,
378 F.2d 22 (2nd Cir. 1967); S e a l y v . D e p t , o f P u b l i c I n
s t r u c t i o n , 252 F.2d 898 (3rd Cir. 1957), certiorari denied,
356 TT.S. 975 (1958); D e a l v . B o a r d o f E d u c a t i o n , 369 F.2d
55 (6th Cir. 1965); and D o w n s v . B o a r d o f E d u c a t i o n , 366
F.2d 988 (10th Cir. 1964), certiorari denied, 380 U.S. 914.
B.
A SCHOOL BOARD’S DUTY
The duty of school officials to date has been to remedy
segregation which has occurred within a single district, or
to cross school district line for purposes o f desegregation
when districts were established as a part of a dual school
system; I l a n e y v . C o u n t y B o a r d o f E d u c a t i o n o f S e v i e r
C o u n t y . 410 F.2d 920 (8th Cir. 1969); or were set up to im
pede the dismantling o f a dual school system; W r i g h t v .
C o u n c i l o f E m p o r i a , 407 U.S. 451 (1972); or where the state
actively imposed its power to prevent the dismantling of a
dual school system within a single district; L e e v . M a c o n
C o u n t y B o a r d o f E d u c a t i o n , 448 F.2d 746 (5th Cir. 1971);
Cf. B r a d l e y v . S c h o o l B o a r d ( R i c h m o n d ) , 462 F.2d 1058
(4th Cir. 1972), a f f ’d p e r c u r i a m by an equally divided
court, 36 L.Ed.2d 771, 93 Sup. Ct. 1952 (1973).
Once school officials have taken the necessary action
within their respective school corporations to insure that
schools under their control are not racially identified either
as “ white” or “ black” as compared to each other on ac
count of discriminatory acts by school or state officials their
constitutional duty has been considered to be at an end.
S w a n n , s u p r a , 402 U.S. 16, 28, 31-2. To combine city and
county schools “ by judicial fia t” has been expressly de-
2 8
nied as a matter for “ legislative, executive or political reso
lution.” M ap p v. B d . o f E d . o f C h attan ooga , (E. D. Tenn.
1971), 329 F. Supp. 1374, 1378, a it'd per curiam (6th
Cir. 1973) 477 F.2d 851. Compare, H igg in s v. Bd. of Ed.
C ity o f G rand R aids, M ich., No. CA 6386 (W.D.Mieh.
July 18, 1973).
0 .
THIS CASE AMD THE MEW CONSTITUTION
FOR METROPOLITAN AMERICA
The new duty imposed by the Court in the instant case
is one that would require the mixing of races wherever
found within a metropolitan area so that only “ white-
majority” districts would be maintained. This cannot be
done by a single district in all cases, and where it cannot,
the Court would require a substantial redefinition of the
constitutional duty owed under the Fourteenth Amend
ment to each minority child in a city. To date, the school
function and the overall supervision of schools and their
basic governmental structure have been determined by the
State; their boundaries have been set with reference to
historical entities; and the detailed operation and the
myriad of factors involving virtually all of the items de
scribed in K e y e s , supra, are delegated to school districts
with plenary corporate powers. This is vividly described
in S an A n ton io In d ep en d en t S ch ool D ist. v. Rodriguez, 411
U.8. 1, 36 L.Ed. 2d 16 (1973), where state educational fi
nancing schemes faced a comparable challenge in the state
relationship to its governmental units. Any such attempt
to reorder the structure of school government has hereto
fore been “ reserved for the legislative processes of the
various States.” R od rig u es , supra, 36 L.Ed. 2d 16 at 57.
2 9
The imposition of such, a new duty will require courts
not only to balance integrative necessities against travel
time and its effect on the educational system, but also with
prescribing necessary black-white ratios and enrollment;
geographic size and school board organization; and the
distribution of assets, debt, teachers, and tax base for each
unit in each school district in the entire metropolitan area.
The Sixth Circuit’s point of view is a call for busing and
total school reorganization for racial balance, and is clearly
contrary to the cases where majority-black schools and
majority-black school systems have been approved. See
Wright v. E m poria , su pra (66% black) ; B ra d ley v. S chool
Board of Richm ond, V irgin ia , supra (69% black); N orth -
cross v. B oard o f E d u ca tion o f M em phis C ity Schools,
397 TJ.S. 232 (1970) (53.6% black) (341 F. Supp. at p. 586);
Raney v. B oard o f E d u ca tion o f Gould S ch ool D is tr ic t, 391
U.S. 443 (1968) (60% black); U.S. v. S cotland N eck C ity
Board o f E ducation , 407 TJ.S. 484 (1972) (78% black);
Brunson v. B oard o f T ru s tees o f S ch ool D is tr ic t N o. 1 o f
Clarendon C ounty, su pra (90% black). In addition, busing
solely for purposes of racial balance is proscribed by the
Civil Rights Act of 1964, 42 TJ.S.C. §2O0Oc-6(a).
Further, the trial court and the Sixth Circuit in the
majority opinion erred by basing the remedy on the over
all right of the State to control the methods of education.
The real issue is not whether education is a “ state power”
or “ local power” but whether a Federal court should
respect the right of the states to structure their internal
government under the Tenth Amendment to the United
States Constitution.
It is submitted that this structure of State government
should not be destroyed where the concentration of blacks
within the inner-city was caused by a variety of factors in
cluding in-migration, birthrates, income factors and per-
3 0
sonal choice. Where such concentration of blacks was not
caused by State action, the internal structure of the State
has been respected. See, e.g., S p en cer v. K u g ler , supra.
CONCLUSION
A decision to mandate a metropolitan “ solution” is bas
ically a political and social decision—a major untried
change in ordering human affairs, at least as far as the
Federal Judiciary is concerned.
However, the nation as a whole has chosen to administer
its schools in relatively small governmental units as is
evidenced by the following chart showing the number and
percent of school districts by size in the United States:
Pupils
Number of
Districts
Percentage
of Districts
25,000 and over 180 1.001%
10,000 to 24,999 538 2.992%
5,000 to 9,999 1,096 6.095%
2,500 to 4,999 2,026 11.268%
300 to 2,499 7,911 43.998%
Under 300 6,229 34.644%
(Source: Digest of Educational Statistics,
1971 Ed. United States Dept, of
H.E.W.)
One can paraphrase R o d r ig u ez : the concept of this case,
after it has mutated in the Court of Appeals, is a chal
lenge to the manner in which states choose to educate chil
dren, an area in which the federal and state courts lack
expertise and familiarity, where educators are divided on
many of the problems of reorganization and where it would
be difficult to imagine a rule having a greater potential
impact on the federal system.
3 1
Finally, it must be said that these opinions below do not
advance the cause of human dignity, human freedom, or
human choice. They greatly retard those critical elements
of a free society and this appears to have occurred be
cause the courts have confused the elements of a class
action with constitutional rights under the Fourteenth
Amendment. The dissenting opinion in the Sixth Circuit
captured the essence of the matter, saying:
“ The metropolitan busing remedy order by the
Court is, however, unconstitutional on a more -funda
mental level. It invalidly assumes that the equal pro
tection clause of the Fourteenth Amendment protects
groups and not individuals. T h e en tire thrust o f the
District C o u rt ’ s ord er is that the rights o f blacks as a
group m ust he red ressed and that, in the p ro cess , the
rights o f individual black, ch ildren ( and non-black chil
dren) m ay be d isrega rd ed .” 484 F.2d at 265. (Em
phasis supplied.)
WHEREFORE, for all the above and foregoing, the
State of Indiana, amicus curiae herein, respectfully urges
this Court reverse the decision of the Sixth Circuit.
Respectfully submitted,
T h e o d o r e L. S e n d a k
A tto r n e y G eneral o f Indiana
D o n a l d P. B o g a r d
D ep u ty A tto r n e y G eneral
W l l i a m F. H a r v e y
S pecia l C ounsel fo r the
A tto r n e y G eneral
Office of Indiana Attorney General
219 State House
Indianapolis, Indiana 46204
Telephone: (317) 633-4076
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1973
W ILLIAM G. MILLIKEN, et al.,
P e tit io n er s ,)
)
vs.
RONALD G. BRADLEY, et al.,
) No. 73434
)
)
)
RONALD G. BRADLEY, et al.,
R esp o n d en ts .)
)
ALLEN PARK PUBLIC SCHOOLS, et al., )
)
P etit io n ers ,)
)
vs. ) No. 73435
)
)
)
R esp on d en ts .)
)
THE GROSSE POINTE PUBLIC SCHOOL)
SYSTEM, et al., )
)
P etit io n ers ,)
vs. ) No. 73436
)
RONALD G. BRADLEY, et al., )
)
R esp on d en ts .)
3 2
3 3
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 28th day
of December, 1973, three (3) copies of the BRIEF ON
THE MERITS IN SUPPORT OF PETITIONERS SUB
MITTED AMICUS CURIAE BY THE STATE OF
INDIANA were deposited in the United States Mail, first
class postage prepaid, addressed to all counsel of record,
except that service of the counsel of record residing in
excess of five hundred (500) miles from Indianapolis,
Indiana, has been made by air mail, postage prepaid.
Counsel o f R eco rd :
Jack Greenburg
Norman Chachkin
10 Columbus Circle
New York, New York 10015
Louis R. Lucas
William E. Caldwell
525 Commerce Title Building
Memphis, Tennessee 38103
Elliott Hall
950 Guardian Building
Detroit, Michigan 48226
Douglas H. West
3700 Penobscot Building
Detroit, Michigan 48226
Prank T. Kelley
Attorney General o f Michigan
Robert A. Derengoski
Solicitor General
720 Law Building
525 W. Ottawa Street
Lansing, Michigan 48913
Paul R. Dimond
210 E. Huron Street
Ann Arbor, Michigan 48108
Nathaniel A. Jones
1790 Broadway
New York, New York 10019
J. Harold Flannery
Robert Pressman
Larsen Hall, Appian Way
Cambridge, Massachusetts 02138
William M. Saxton
John B. Weaver
Robert M. Vercruysse
Xhafer Orhan
1881 First National Building
Detroit, Michigan 48226
THEODORE L. SENDAK
Attorney General of Indiana
• ■ .
*' - -
- - . - - - —
-• \ • - - . •- ' : \
APPENDIX
TABLE OF CONTENTS
Page
Memorandum of Decision of July 20, 1973—U.S. Dis
trict Court for the Southern District o f Indiana .. . A -l
Supplemental Memorandum of Decision o f December,
6, 1973—U. S. District Court for the Southern Dis
trict of Indiana ................................................................ A-3
Indiana SMSA (16-3) .........................................................A-64
Chicago Urbanized Area (16-44) .......................................A-65
South Bend Urbanized Area (16-48) .............................. A-66
Pupil Statistical Data for Eight Counties (Ex. H ) .. .A-67
Carmel-Clay Exhibit DD— U.S.A. & Buckley et al. v.
Board of School Commissioners et al., IP 68-C-225. . A-68
A - i
UNITED STA TE S D ISTRICT COURT
SOUTHERN D ISTRICT OF IN D IAN A
IN DIAN APO LIS DIVISION
P I L E D
U.S. District Court
Indianapolis Division
July 20 8:10 AM ’73
Southern District
o f Indiana
Arthur J. Beck
Clerk
UNITED STATES OF AM ERICA, )
)
Plaintiff,)
)
DONNY BRURELL BU CKLEY, )
ALYCIA MARQUESE BU CKLEY, By)
their parent and next friend, Ruby L.)
Buckley, on behalf o f themselves and)
all Negro school age children residing)
in the area served by original defend-)
ants herein, )
, )
I n t e r v e n i n g P l a i n t i f f s ,)
)
vs. ) NO. IP 68-C-225
THE BOARD OF SCHOOL CO MM IS-)
SIONERS OF TH E CITY OF IN-)
DIANAPOLIS, IN D IA N A ; )
KARL R. KALP, as Superintendent o f)
Schools; )
ERLE A. KIGHTLINGER, as President)
of The Boai'd of School Commission-)
ers; )
A -l
A -2
JE SSIE JACOBS, )
CARL J. M EYER, )
PAU L E. LEW IS, )
L E STE R E. NEAL, )
CONSTANCE R. V A LD E Z, )
W . FRED R A TC L IF F , Members o f The)
Board o f School Commissioners o f the)
City o f Indianapolis, )
D e f e n d a n t s , )
)
OTIS R. BOW EN, as Governor o f the)
State o f Indiana; )
THEODORE SENDAK, as Attorney)
General o f the State of Indiana ; )
HAROLD H. NEGLEY, as Superintend-)
ent o f Public Instruction of the State)
o f Indiana; )
)
TH E M ETROPOLITAN SCHOOL )
D ISTRICT OF D ECATU R TOW N-)
SHIP, M ARION COUNTY, IN D IA N A ;)
TH E FR A N K LIN TOW N SH IP COM-)
M UNITY SCHOOL CORPORATION,)
M ARION COUNTY, IN D IA N A ; )
)
TH E M ETROPOLITAN SCHOOL )
D ISTRICT OF LAW R EN CE TOW N-)
SHIP, M ARION COUNTY, IN D IA N A ;)
THE M ETROPOLITAN SCHOOL )
D ISTRICT OF P E R R Y TOW N SH IP,)
M ARION COUNTY, IN D IA N A ; )
)
THE M ETROPOLITAN SCHOOL )
D ISTRICT OF P IK E TOW N SH IP,)
M ARION COUNTY, IN D IA N A ; )
A -3
the m e t r o p o l i t a n SCHOOL )
DISTRICT OF W ARREN TOWN- )
SHIP, MARION COUNTY, INDIANA;)
)
THE METROPOLITAN SCHOOL )
DISTRICT OP WASHINGTON TOWN-)
SHIP, MARION COUNTY, INDIANA;)
)
THE METROPOLITAN SCHOOL )
DISTRICT OF WAYNE TOWNSHIP,)
MARION COUNTY, INDIANA; )
)
SCHOOL CITY OF BEECH GROVE,)
MARION COUNTY, INDIANA; )
)
SCHOOL TOWN OF SPEEDWAY,)
MARION COUNTY, INDIANA; )
)
THE GREENWOOD COMMUNITY)
SCHOOL CORPORATION, JOHNSON)
COUNTY, INDIANA; )
)
CARMEL-CLAY SCHOOLS, HAMIL-)
TON COUNTY, INDIANA; )
)
MT. VERNON COMMUNITY SCHOOL)
CORPORATION, HANCOCK COUNTY,)
INDIANA; )
GREENFIELD COMMUNITY SCHOOL)
CORPORATION, HANCOCK COUNTY,)
INDIANA; )
MOORESVILLE CONSOLIDATED j
SCHOOL CORPORATION, MORGAN)
COUNTY, INDIANA; )
PLAINFIELD COMMUNITY SCHOOL)
CORPORATION, HENDRICKS )
COUNTY, INDIANA; )
A -4
AVON COMMUNITY SCHOOL COB-)
PORATION, H EN DRICKS COUNTY,)
IN D IA N A ; )
)
BROW NSBURG COMMUNITY )
SCHOOL CORPORATION, HEN- )
D RICKS COUNTY, IN D IA N A ; )
)
EAGLE-UNION COMMUNITY )
SCHOOL CORPORATION, BOONE )
COUNTY, IN D IA N A ; )
)
TH E IN D IA N A STA TE BOARD OP)
EDUCATION, a public corporate body;)
)
A d d e d D e f e n d a n t s , )
)
CITIZEN S FOR Q U ALITY SCHOOLS,)
INC., )
)
I n t e r v e n i n g D e f e n d a n t , )
)
COALITION FOR IN TEG RATED )
EDUCATION, )
)
A m i c u s C u r i a e . )
MEMORANDUM OF DECISION
I. Introduction
This is a school desegregation action originally brought
by the United States on May 31, 1968, pursuant to Section
407(a) and (b) of the Civil Rights Act o f 1964, 42 U.S.C.
§ 2000c— 6(a) and (b) against The Board o f School Com
missioners of Indianapolis, Indiana (hereinafter IPS), the
members of the Board, and its appointed Superintendent of
Schools.
A -5
On August 18, 1971, this Court found and concluded that
IPS was guilty of unlawfully segregating the public schools
within its boundaries. That decision was unanimously
affirmed by the United States Court of Appeals for the
Seventh Circuit and review was denied by the Supreme
Court of the United States, without dissent. United States
v. Board of Sch. Com ’rs, Indianapolis, Ind., 332 F.Supp.
655, a ff ’d 474 F.2d 81, cert.den. ------ U.S. ------ , 41 L.W.
3673 (June 25,1973). Such issue is res judicata.
In contemplating a remedy to vindicate the rights of
Negro school children, this Court concluded that it could
have ordered a massive “ fruit basket” scrambling of stu
dents within IPS to achieve exact racial balancing. But
the Court also concluded that in the long run, given the
steadily rising percentage of Negro pupils within IPS, the
racial composition of IPS would become nearly all Negro
because of an acceleration in the departure of white fami
lies with children from IPS. In this connection the Court
discussed the “ tipping-point” factor— the point at which
white exodus from a school unit is accelerated by increase
of Negro students beyond a certain variable percent, and
noted that the tipping-point/resegregation problem would
become insignificant if the boundaries of IPS were enlarged
to include all of Marion County and a portion of its con
tiguous metropolitan region. The Court does not consider
its conclusions in this area as res judicata.
In order to provide an appropriate adverse setting for
further consideration of the legal and practical appropri
ateness of a metropolitan plan, the Court ordered the plain
tiff United States to secure the joinder of necessary parties
and seek further relief to determine the answers to certain
questions posed by the Court.
On September 7,1971, the United States (hereinafter the
Government), pursuant to such order, moved to add as
A -6
parties defendant all school corporations in Marion
County, other than IPS. The motion was granted. How-
ever, the Government failed to assert any claims or seek
any relief against such added defendants. A few days later
the Buckley plaintiffs filed their petition to intervene in
this action in their own right and as respresentatives of a
class consisting of Negro school age children residing in
Marion County, Indiana, who are required to attend segre
gated schools operated by IPS. The petitioners alleged that
their interests and those of the class they represented were
not being adequately protected by the original plaintiff,
the United States, because the Government had failed to
seek relief against the added school defendants. The Court
granted the petition to intervene on September 14, 1971.
The Buckley intervening plaintiffs (hereinafter plain
tiffs) eventually joined as added defendants Edgar D.
Whitcomb (since succeeded by Otis B. Bowen), as Gov
ernor of the State of Indiana; Theodore Sendak, as
Attorney General of Indiana; John J. Loughlin (since suc
ceeded by Harold H. Negley), as Superintendent of Public
Instruction of the State of Indiana; The Indiana State
Board of Education, and nineteen school corporations
within and without Marion County, Indiana (including* the
ten in-county corporations joined by the Government), as
follows:
Marion County
The Metropolitan School District of Decatur Township
(hereinafter Decatur)
The Franklin Township Community School Corporation
(hereinafter Franklin)
The Metropolitan School District of Lawrence Township
(hereinafter Lawrence)
The Metropolitan School District o f Pike Township
(hereinafter Pike)
The Metropolitan School District o f W arren Township
(hereinafter Warren)
The Metropolitan School District o f Washington Town
ship (hereinafter Washington)
The Metropolitan School District o f Wayne Township
(hereinafter Wayne)
School City of Beech Grove (hereinafter Beech Grove)
School Town of Speedway (hereinafter Speedway)
Boone County
Eagle-Union Community School Corporation (herein
after Eagle)
franklin County
Greenwood Community School Corporation (hereinafter
Greenwood)
Hamilton County
Carmel-Clay Schools (hereinafter Carmel)
Hancock County
Greenfield Community School Corporation (hereinafter
Greenfield)
Mt. Vernon Community School Corporation (hereinafter
Mt. Vernon)
Hendricks County
Avon Community School Corporation (hereinafter Avon)
Brownsburg Community School Corporation (here
inafter Brownsburg)
A-7
A -8
Plainfield Community School Corporation (hereinafter
Plainfield)
Morgan County
Mooresville Consolidated School Corporation (herein
after Mooresville)
The geographical areas served by IPS and added defend
ants, with the exception o f Greenfield, and Union Township
o f Eagle-Union, are reflected on Figure 1. Also represented
thereon, for reasons which will hereafter appear, are terri
tories or parts of territories served by certain other school
corporations bordering on Marion County, namely, Clark-
Pleasant Community School Corporation (Clark) and Cen
ter Grove Community School Corporation (Grove) of John
son County; Delaware and Fall Creek Townships, a part
o f Hamilton Southeastern School Corporation of Hamilton
County; Sugar Creek Township, a part o f Southern Han
cock County Community Schools (Hancock) of Hancock
County; and Moral Township, a part o f Northwestern
Consolidated School Corporation of Shelby County (North
western) of Shelby County.
The intervening defendant Citizens of Indianapolis for
Quality Schools, Inc., is a not-for-profit corporation whose
members are parents of children in IPS. Its initial attempt
to intervene in this action, in opposition to the original
complaint of the Government, was denied by this Court,
although the Court permitted it to attend the original trial,
present argument, and file a brief a m i c u s c u r i a e . The ruling
was appealed and affirmed. United States v. Board of Sch.
Com ’rs, Indianapolis, Ind., 466 F.2d 573 (7 Cir. 1972). Sub
sequently, however, intervention was permitted and inter
vening defendant participated fully in the most recent
trial.
A -9
Coalition for Integrated Education is an unincorporated
association of individuals favoring a metropolitan plan of
school desegregation, which filed a petition fo r leave to
appear a m i c u s c u r i a e for the purpose of presenting a
desegregation plan, and a supplemental motion for leave
to file a brief. The names of the members of the association
are attached to the original petition. The motion for leave
to file a brief as a m i c u s c u r i a e is granted. The Court
reserves ruling on the petition to file a plan, as premature.
II. Issues
The issues of fact submitted for trial are as follow s:
1. Whether or not desegregation of IPS within its
present boundaries (sometimes referred to as an “ Indian
apolis Only Plan” ) can be accomplished as required by the
equal protection clause of the Fourteenth Amendment in
such a manner as to ‘ ‘ work, ’ ’ within the meaning of Green
v. County School Board, 391 U.S. 430 (1968) : “ The burden
on a school board today is to come forward with a plan
that promises realistically to work . . . ”
2. Whether or not any of the added defendant officials
of the State of Indiana, their predecessors in office, or the
added defendant The Indiana State Board o f Education
have acted to promote segregation, or failed to carry out
duties imposed upon them by law in such a manner as to
promote segregation or inhibit desegregation within IPS.
3. Whether or not any of the added defendant school
corporations have acted to promote segregation either
within IPS or within their own boundaries.
The issues of law presented are as follows :
1. Whether or not the acts of d e j u r e segregation here
tofore found to have been practiced by IPS can be imputed
A -10
to the State o f Indiana such that appropriate State officials
or agencies may be directed to afford relief to vindicate
the Fourteenth Amendment rights o f plaintiffs and their
class.
2. Whether or not appropriate State officials or
agencies have the power to direct reorganization of IPS
with other school corporations, or to direct the transfer or
exchange o f IPS pupils to or with other school corpora
tions in order to vindicate such rights.
3. Whether or not this Court may act in the manner
just described to vindicate such rights i f responsible
officials or agencies o f the State fail to do so within a
reasonable time.
III.
Viability of an Indianapolis Only Plan
As stated above, the Court in its original opinion
expressed some doubts as to whether or not a stable deseg
regation plan could he established with the confines of
IPS, based upon the evidence adduced at that trial, ■which
was all to the effect that when the percentage of Negro
pupils in a given school approaches 40%, more or less, the
exodus of white pupils from such a school becomes accel
erated and irreversible, resulting in resegregation. How
ever, additional evidence on this issue was adduced at
the recent trial, and the Court bases its findings exclusively
upon such latter evidence.
Having considered such evidence, the Court finds it to
be a fact that when the percentage o f Negro pupils in a
given school approaches 25% to 30%, more or less, in the
area served by IPS, the white exodus from such a school
district becomes accelerated and continues, as demon
strated by Figure 2. A ll witnesses agreed that once a
A - l l
school becomes identifiably black, it never reverses to
white, in the absence of redistricting. Therefore, progres
sions from white to black are irreversible once the critical
percentage has been reached in the absence of interven
tion through redistricting. Below the critical percentage,
however, schools tend to remain stable, as demonstrated
on Figure 3. With further reference to Figure 3, it will be
noted that there is one elementary school within IPS
which has remained stable, over the past five years with
a high degree o f integration. This lone exception is School
86, which the Court judicially knows to be located in the
Butler-Tarkington area of the city, mentioned in the testi
mony as an area in which the residents, black and white,
have worked together for the past several years in a com
munity relations program designed to maintain the sta
bility of the neighborhood as an integrated community.
The results achieved show dramatically that such a pro
gram can be made to work, but unfortunately the other
statistics illustrate all too well that the Butler-Tarkington
situation is the exception and not the rule.
The Court has no reason to find or believe that a crash
IPS-wide community relations program, even if one were
in progress (and none is), would achieve a system-wide
stabilization in time to preserve the entire system from
becoming identified as racially black. The Court further
finds that, given the present percentage o f Negro pupils in
the IPS system, which has risen to 41.1% since the previous
trial, and the further fact that black enrollments in IPS
will in the near future surpass white enrollments therein,
as graphically illustrated on Figure 4, the right o f plain
tiffs and their class to attend schools which are not racially
identifiable, as provided by the equal protection clause of
the Fourteenth Amendment, cannot be accomplished with
in the present boundaries of IPS in a way that will work
for any significant period o f time.
A-12
In other words, it is apparent that as a sheer exercise
in mathematics, it would be possible for this Court to order
desegregation of IPS on a 58.9%— 41.1% basis, or some
basis similar thereto, so that no school could, for the time
being, be racially identifiable as a black school. As a matter
of fact, IPS announced rather dramatically during the
recent trial that such a plan would be put into effect for
the coming school year, but rejected such plan at its recent
meeting of July 16, 1973, as the Court knows judicially.
As demonstrated, however, such a plan, if put into effect,
would have the effect of an immediate acceleration of
white students into suburban white enclaves or private
school, so that IPS as a whole would predictably have a
black m ajority within a matter of two or three years.
This is not the Court’s idea of a plan which “ promises
realistically to work. ’ ’
On the other hand, the alternative to such a plan is to
limit desegregation to figures which are statistically toler
able insofar as “ white flight” is concerned, such as to pro
vide that schools which now contain few or no Negro
students accept additional numbers of the minority race,
not to exceed perhaps 20% to 30%. Such a plan would, of
course, have the effect of affording education in a desegre
gated setting to those minority race students attending
schools in which they would make up the minority of 20%
to 30% ; but considering the total percentage of minority
race students in the IPS system, it is equally obvious that
such a plan would leave a large number o f schools with
a minority percentage in excess o f 50%, which would not
only make them racially identifiable schools, but would
once again accelerate white flight from those particular
schools.
On this key question as to whether a meaningful
desegregation plan could be put into effect within the con
A-13
fines of IPS, tlie Court heard expert opinions from numer
ous witnesses called by each side. As usual, they disagreed.
However, in the Court’s opinion^ a clear preponderance of
the expert opinion was that no feasible plan could be
devised. Those who testified to the contrary tended to
qualify their opinions, and in some instances the facts pre
sented by such witnesses simply did not support their
conclusions.
For example, Dr. Mercer, a witness called by the Govern
ment, testified as to numerous facts having to do with
desegregation efforts in the State o f California, and pre
sented the City of Riverside as a city where desegregation
was apparently working well. However, it developed that
the Riverside plan was put into effect voluntarily, accom
panied by much community relation effort sponsored by the
school and the local news media, and finally that the per
centage of minority race students in the entire system was
less than 25%. None of these facts have any relation to the
situation in Indianapolis. On the other hand, the witness’s
own Figure 7, which is the last sheet o f Government
Exhibit 14, discloses the sharp and dramatic drop in
“ other-white ” students in Inglewood, Pasadena, and San
Francisco following public announcement that such schools
would be required to desegregate, later followed by the
filing of legal actions to accomplish such end. (The term
“ other-white” in California refers to those persons
called “ Anglos” in Denver and simply “ whites” or “ Cau
casians” in Indianapolis. The California “ other-white” is a
white who does not have a Spanish surname.)
The testimony of another defense expert, Dr. Hooker,
was completely demolished by cross-examination showing
that in his published articles he had expressed views oppo
site to those given in this ease, and Dr. Dodson testified
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that a metropolitan plan would be superior to one limited
to IPS.
The solution, therefore, must be to look elsewhere, if
this can be done within the law.
IV.
Responsibility of the State of Indiana
In its previous opinion of August 18, 1971, the Court
devoted several pages of its opinion to tracing the history
of segregation within Indiana beginning 1800, demonstrat
ing that the State, through its legislative, executive, and
judicial branches had practiced all manner of discrimina
tion against Negroes, not only in the field of education, but
in housing and innumerable sectors o f their social and eco
nomic life, as well as in the area of civil rights. 332 F.Supp.
pp. 658-665. None o f such regrettable history, o f which the
Court then took judicial notice, has been refuted by any
added defendant, with the exception o f a quibble about
the effect of certain school laws passed in 1961 and there
after. The Court therefore incorporates such previous his
tory into this opinion by reference, save to the extent that
its discussion of Acts o f the General Assembly of 1961 and
thereafter will be reviewed further hereafter.
Before entering into a discussion as to the specific acts
or omissions of State officials having a bearing on the
problems of segregation and desegregation, it seems
appropriate at this point to set out in detail the role of
the State in public education in Indiana, touched upon
rather briefly in this Court’s previous opinion.
The original seaboard colonies were, of course, founded
in the 17th and 18th Centuries, when the concept of public
education was unheard of. As a result, such schools which
A-15
existed therein in the early days were either church sup
ported or were supported strictly be private funds. The
relics of that system linger today in various states which
evolved from the original colonies so that, fo r example,
the decision in Bradley v. School Board of City of Rich
mond, Virginia, 462 F.2d 1058 (4 Cir. 1873), ( “ R i c h
m o n d ” ) , based its decision reversing an order of the Dis
trict Court for a metropolitan desegregation plan in
Richmond and surrounding counties primarily on the basis
that the operation of public schools within the different
counties of the Commonwealth o f Virginia is a matter of
local option, and that, if the option be exercised, the power
to operate, maintain and supervise the public schools in a
given county is in the exclusive jurisdieion of the local
school board and not the state.
However, following the successful conclusion o f the
Revolutionary War, it was foreseen by the Congress that
an educated citizenry was vital to maintaining an enlight
ened self-government as provided for in the Constitution,
and hence the education of all citizens became a concern
of the Government. Thus it was that when the Northwest
Territory was formed out of lands formerly claimed by the
Commonwealth of Virginia, the Northwest Ordinance of
1787 provided:
“ Religion, morality and knowledge, being necessary
to good government and the happiness of mankind,
schools and the means of education shall forever be
encouraged. ’ ’ Art. III.
The State of Indiana along with the states of Michigan,
Ohio, Illinois, Wisconsin, etc., were, o f course, later
formed out of the Northwest Territory, and such states
accordingly provided by their respective constitutions for
the establishment o f systems o f public education. The
original 1816 Constitution o f Indiana, Sections 1 and 2,
A-16
Article 9, paraphrased the above quoted language from
the Northwest Ordinance and provided that it should be
the duty o f the General Assembly to provide by law for a
general system of education, ascending in a regular gradu
ation from township schools to a state university wherein
tuition would be free, and equally open to all. Article 8,
Section 1, o f the present Constitution, adopted in 1851, car
ries forward the duty of the State in the following
language:
“ Knowledge and learning, generally diffused through
out a community, being essential to the preservation
o f a free government; it shall be the duty of the
General Assembly to encourage, by all suitable means,
moral, intellectual, scientific, and agricultural im
provement; and to provide, by law, for a general and
uniform system of Common Schools, wherein tuition
shall be without charge, and equally open to all. ’ ’
Under the 1851 Indiana Constitution, the common schools
as a whole are made a state institution. Ratcliff v. Dick
Johnson School Tp., 204 Ind. 525, 185 N.E. 143 (1933);
Ehle v. State, 191 Ind. 502, 133 N.E. 748 (1922); City of
Lafayette v. Jenners, 10 Ind. 74 (1857). The State owns
and maintains the common schools just as it does its public
institutions of every kind. State v. Haworth, 122 Ind. 462,
23 N.E. 946 (1890). School corporations within the system
only hold title to such schools as trustees and the State
has the right to change trustees by annexation at will.
Board o f School Com ’rs v. Center Tp., 143 Ind. 391, 42
N.E. 808 (1896). The legislature may consolidate schools
by resolution without notice to the voters or without any
referendum or election. Fruit v. Metropolitan Sch. Dis. of
Winchester, etc., 241 Ind. 621,172 N,E.2d 864 (1961).
It was the intention o f the framers o f the Constitution
to place the common schools under the direct control and
A-17
supervision of the State. Green Castle Township v. Black,
5 Ind. 557 (1854); State v. Eddington, 208 Ind. 160, 195
N.E. 92 (1935). The authority over the schools and school
affairs resides exclusively within the dominion o f the leg
islature and the school system is a centralized and not a
localized form of school government. Gruber v. State, 96
Ind. 436, 148 N.E. 481 (1925); Jordan v. City of Logans-
port, 178 Ind. 629, 99 N.E. 1060 (1912) ; State v. Ogan, 159
Ind. 119, 63 N.E. 227 (1902) ; State v. Haworth, s u p r a ;
State v. Eddington, s u p r a .
Under Article 8 of the Indiana Constitution, the power
of the General Assembly to regulate the school system is
practically unlimited. Kostanzer v. State, 205 Ind. 536,
187 N.E. 337 (1933). The employees of a school corporation
undertake their duties not as officers of local units o f self
government but as officers o f the public school system,
which is a State institution. State v. Eddington, s u p r a .
The General Assembly has the power to prescribe the
terms of the employment contracts to be executed by school
corporations, Indiana ex rel Anderson v. Brand, 303 U.S.
95 (1937), and the power to provide a general system of
licenses for those desiring to teach. Stone v. Fritts, 169
Ind. 361, 82 N.E. 792 (1907).
While the State in acting directly to carry out its educa
tional functions under Article 8, Section 1, is not forbidden
to create and use local corporations for that purpose, it
assumes responsibility for the conduct of these corpora
tions. Such corporations were and still are involuntary
corporations established as part of the school system of
Indiana and are but agents of the State for purposes of
administering the State system of education. Indiana ex
rel Anderson v. Brand, s u p r a ; Campbell v. City of Indian
apolis, 155 Ind. 186, 57 N.E. 920 (1900); Freel v. School
City of Crawfordsville, 142 Ind. 27, 41 N.E. 312 (1895).
A -18
Such corporations may only exercise the authority given
them by the State, R atcliff v. Dick Johnson School Tp.,
s u p r a - , Ehle v. State, s u p r a , and the conduct and practices
of these agent corporations must he considered acts of the
State. Hummer v. School City o f H artford City, 124 Lid.
App. 30, 112 N.E.2d 891 (1953), overruled in part on other
grounds, Flowers v. Bd. o f Com ’rs of County of Vander
burgh, 240 Ind. 668,168 N.E.2d 224 (1960).
Robinson v. Schneck, 102 Ind. 307 1 N.E. 698 (1885),
held that it was constitutional for the legislature to provide
by general law for local school authorities to levy school
taxes. Some o f the general language in that case could
suggest that local school corporations are to be treated as
local units of self-government, as in Virginia. To clear up
such an implication, the Supreme Court of Indiana in State
v. Haworth, s u p r a , made it clear that Robinson did not
change the relationship o f school corporations as agents
of the State. The m ajority opinion specifically rejected the
dissenting opinion’s argument based on R o b i n s o n that the
school corporations in the State are units of self-govern
ment in which local control of the schools is left with the
people within such corporation. The m ajority held instead
that the authority and control of schools and school affairs
is vested exclusively in the General Assembly and that
such affairs are intrinsically matters o f State concern and
not of a local jurisdiction. “ In such matters, the State is
a unit, and the legislature the source of power.” To the
same effect, see Ft. Wayne Community Schools v. State,
240 Ind. 57,159 N.E.2d 708 (1959).
To summarize in the words o f the court in State v.
Mutschler, 232 Ind. 580,115 N.E.2d 206 (1953):
“ The people o f Indiana have translated into a funda
mental constitutional postulate the belief that the gen
eral diffusion o f knowledge and learning throughout a
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community is essential to the preservation o f free gov
ernment, and in harmony with this constitutional
postulate the Constitution recognizes that the business
of education is a governmental function a n d m a k e s
p u b l i c e d u c a t i o n a f u n c t i o n o f s t a t e g o v e r n m e n t a s
d i s t i n g u i s h e d f r o m l o c a l g o v e r n m e n t . It was evidently
the intention of the framers of the Constitution to
place the common schools under the direct control and
supervision of the State, and make it a quasi
department of the state government, a c e n t r a l i s e d a n d
n o t a l o c a l i s e d , form of school government.”
(Emphasis added [in the original]).
The Indiana statutes on education are testimony to the
constitutional and decisional history just discussed. The
Indiana State Board o f Education and its predecessor have
been given great powers, and “ It shall be the duty of the
board to coordinate the work o f the various commissions
so as to bring about an effective and an ( s i c ) unified
school program and to make determinations in matters of
jurisdiction between such commissions in accordance with
the law, but all actions o f the commissions within their
respective jurisdictions shall be final.” The “ commissions”
are on general education, textbook adoption, and teacher
training and licensing. Indiana Code 1971, 20-1-1-1 & 2,
BurnsInd.Ann.Stat. (hereinafter “ Burns” ) §28-101,102.
Following said Section 20-1-1 of the Indiana Code o f
1971, the first section having to do with schools, there
follow some 349 solid pages o f statutes enacted by the
General Assembly regulating virtually every phase of
school operation, printed single spaced, on unusually wide
paper, in a type style reminiscent o f that used in the exclu
sions section of an insurance policy. The annotated version
of these laws occupies two complete volumes o f Burns, com
prising some 1,154 standard pages (but with annotations
m small type), exclusive of indices and pocket parts. Burns
A -20
Yol. 6, parts 3 and 4. The administrative rules and regula
tions concerning education consume an additional 126
pages. Burns Ind.Adm. R. & Reg., Title 28. For obvious
reasons, the Court will attempt no summary o f this vast
compendium, except to say generally that all phases of the
operation o f the public schools are regulated, in one way
or another, by the State.
Of particular importance here, however, should be noted
the statute, in effect from 1949 to 1972, which vested in
the commission on general education of The Indiana State
Board o f Education the power and duty to regulate new
school sites and buildings or any modifications of or addi
tions to existing buildings, and established a division of
schoolhouse planning under a director to he appointed by
the state superintendent o f public instruction with the
approval of the governor. IC 1971, 20-1-2-1— 2-1-2-6, Burns
28-301— 28-306. Such law was repealed in 1972, but only
because it was at such time replaced by a similar law. 10
1971, 20-1-1-6, as added 1972; Burns 28-109 (Pocket supp.).
Questions identical to those presented in this action have
been considered by the Court of Appeals for the Sixth
Circuit in Bradley, et al, v. Milliken, et al, —- F .2d— (1973).
In upholding the trial court’s determination that a metro
politan remedy would be appropriate to accomplish deseg
regation o f the public schools o f Detroit, it based its hold
ing upon discriminatory practices on the part of both the
Detroit school board and the State of Michigan found to
be “ significant, pervasive and causally related” to the seg
regation in the Detroit school system.
The discriminatory practices o f the Detroit school board
were, in general, acts of commission identical to those
found to have occurred in Indianapolis, such as gerry
mandering school attendance zones, making boundary
changes which promoted segregation, providing optional
A-21
attendance zones in “ changing” areas, assigning teachers
and staff so as to mirror the racial complexion o f a school’s
student body, assigning students to elementary and high
schools according to the racial patterns of the feeder
schools, selecting sites for new schools and building addi
tions to existing schools in such a fashion as to separate
the races, etc.
As between the four discriminatory practices charged to
the State, the Sixth Circuit held :
“ The clearest example of direct State participation in
encouraging the segregated condition of Detroit public
schools, however, is that o f school construction in
Detroit and the surrounding suburban areas. Until 1962
the State Board o f Education had direct statutory
control over site planning for new school construction.
During that time, as was pointed out above, the State
approved school construction which fostered segrega
tion throughout the Detroit Metropolitan area . . .
Since 1962 the State Board has continued to be in
volved in approval of school construction plans.”
In the case at hand the evidence shows that Arlington
High School was opened in 1961 with a Negro enrollment
of 0.23%, Northwest High School was opened in 1963 with
a Negro enrollment of 0.0%, and John Marshall High
School was opened in 1967 with a Negro enrollment of
0.3%. Inspection of maps in evidence discloses that Arling
ton is less than a mile from the extreme northeast corner
of IPS, Marshall is squarely on the extreme east line of
IPS, and Northwest slighly less than a mile from the ex
treme west line of IPS. This Court found in its previous
opinion, and finds once again, that the placement of such
schools constituted acts o f d e j u r e segregation on the part
of IPS. The former holding has already been affirmed by
the Seventh Circuit, 474 F.2d at pp. 87, 88. See Swann v.
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Charlotte-Mecklenburg Board of Education, 402 US 1
(1971).
Here, as in Michigan, the sites for the three high schools
mentioned were necessarily approved by the appropriate
agencies of defendant The State Board of Education and the
Superintendent of Public Instruction. On the authority of
Bradley, these were acts of de jure segregation on the
part of officials of the State. Similar examples could be
pointed out with regard to site selection for construction
and enlargement of elementary schools, but the foregoing
examples are so obvious that there is no need to labor the
point.
Further, at all times since 1949, the Indiana statue for
bidding racial segregation in educational opportunity has
been in effect, IC 1971, 20-8-6-1, et seq., Burns 28-6106,
et seq., and the mandate of the Supreme Court of the
United States in Brown v. Board of Education of Topeka,
347 U.S. 483 (1954), has been the law since 1954. According
to the evidence in this case, the officials of the State
charged with oversight of the common schools have done
almost literally nothing, and certainly next to nothing, to
furnish leadership, guidance, and direction in this critical
area. Even at this late date, the division of equal educa
tional opportunity of the Indiana Department of Public
Instruction, headed by the State Superintendent, consists
of but four staff members and a secretary, to cover the
entire State of Indiana, and has only been in existence for
the past two years pursuant to a Federal grant. The Court
finds that the failure of the State Superintendent and the
Board of Education to act affirmatively in support of the
law* was an omission tending to inhibit desegregation.
A-23
V. Acts of Added Defendant School Corporations
There was no evidence that any of the added defendant
school corporations have committed acts of de jure segrega
tion directed against Negro students living within their
respective borders. In fact, the evidence shows that, with
a few exceptions, none of the added defendants have had
the opportunity to commit such overt acts because the
Negro population residing within the borders of such
defendants ranges from slight to none, as illustrated on
Figure 5. However, with respect to the added defendants
situate within Marion County, the evidence is that when
the Marion County School Reorganization Committee, ap
pointed pursuant to the Indiana School Reorganization Act
of 1959, 10 1971, 20-4-1, Burns 28-3501, et seq., made its
initial and unanimous recommendation that all of the
school systems in Marion County be merged into one
metropolitan system, the added Marion County defendants
were unanimous in their opposition to the plan (which was,
however, favored by IPS). Subsequently, and for the stated
reason that in its opinion the metropolitan plan could not
be adopted in view of the suburban opposition, the Reorga
nization Committee completely reversed itself and proposed
a plan which, with minor exceptions having to do with
areas within Center Township, froze all existing school
corporations in Marion County according to their then
existing 1961 boundaries.
Thus school reorganization in Marion County, rather
than reorganizing anything except the name and method
of school government as to certain added defendants, did
nothing at all. By way of contrast, the evidence is that on
a state-wide basis reorganizations pursuant to the Act of
1959 ultimately resulted in reducing the number of school
corporations by approximately 50%, and created school
corporations merging what had formerly been separate
A-24
corporations in cities, towns, and their adjoining unincor
porated areas, as well as merging what had formerly
been separate township systems into consolidated systems.
Some of the latter mergers extended across county lines,
as reflected by defendant Wayne’s Exhibit D. As to IPS,
this farcical “ reorganization” had the effect of making it
technically a reorganized school corporation, and thus
hampered its ability to be further reorganized without
complying’ with all of the cumbersome procedures of the
1959 Act and other crippling legislation, as hereinafter
described.
That the added defendants had a legal right to resist the
recommendation of the School Beorganizatinn Committee
under existing law cannot be denied. At the same time, it
is apparent that confining IPS to its existing territory had
the effect, which continues, of making it first difficult and
now impossible, to comply with the law requiring mean
ingful desegregation.
At this point the Court deems it appropriate to consider
briefly the question as to why Figure 5 reflects such a
remarkable absence of Negro citizens from the territories
of the added defendants with the exception of Washington
and Pike (those Negro citizens residing in Wayne are con
centrated in that part of Wayne which is within IPS,
according to school enrollment figures). Such absence is
particularly glaring under the evidence, which reflects
virtually no Negroes in Speedway, wdiich has within its
borders Detroit Diesel Allison Division of General Motors
Corporation, the largest single employer of labor in Marion
County; virtually nine in Beech Grove, which houses the
shops of the Penn Central Transportation Company; virtu
ally none in Warren outside IPS, although Western
Electric, situate in Warren Township, employs thousands
of persons who busily make all of the telephones for Amen-
A-25
can Telephone and Telegraph. Equally remarkable is the
absence of Negroes from Lawrence, which has the vast
Army Finance Center located some two miles east of its
high school. Either it must be concluded that Negroes,
unlike other citizens, simply do not like to live near their
places of employment (and all of the employers mentioned
are equal opportunity employers), or there must he some
other reason.
In Richmond the court said, among other things, “ We
think that the root causes of the concentration of- blacks
in the inner cities of America are simply not known . .
This Court finds that statement incredible. Although it is
undoubtedly true that many factors enter into demographic
patterns, there can be little doubt that the principal factor
which has caused members of the Negro race to be con
fined to living in certain limited areas (commonly called
ghettos) in the urban centers in the north, including Indi
anapolis, has been racial discrimination in housing which
has prevented them from living any place else.
In the trial just concluded a -witness called by the added
defendants conceded that Negroes have been severely lim
ited in their search for housing in the Indianapolis area
to properties advertised in local newspapers as “ for
colored,” and experts called by the Government testified
that discrimination has been a root cause of the black
central city phenomenon.
The Court sees no point in laboring the obvious. If racial
discrimination did not exist in the United States, Indiana,
and the Indianapolis metropolitan area, it would not be
necessary to have laws against it. Yet the past ten years
have brought forth a spate of such laws, local and national,
preceded by reports of investigating commissions without
end, all pointing up what every citizen knows—that dis
A-26
crimination is yet with ns in a nation which daily pledges
that it is “ . . . one nation, under God, indivisible, with
liberty and justice for all. ’ ’
Such racial discrimination, which has been tolerated by
the State at the least, and in some instances has been
actively encouraged by the State, as set out in this Court’s
previous opinion, has had, as its end result, the creation
of an artificial, unrepresented community as pictured
by the exhibits in this case. At the very least it may be
said that Negroes have consistently been deprived of the
privilege of living within the territory of the added defend
ants by reason of the customs and usages of the
communities embraced within such boundaries, and of the
State.
The foregoing should not be taken to mean that this
action is one having to do with discrimination in housing,
and this Court does not consider that a school desegregation
action is one in which it is appropriate to attempt to remedy
such discrimination, past or present. However, when it
may be demonstrated that, as here, the discriminatory cus
toms and usages mentioned have had a demonstrably causal
relationship to segregation in the schools, such factor
should not be casually swept under the table as in
Richmond.
VI.
Conclusions of Lav/
The Court concludes, as a matter of law, as follows:
1. The acts of de jure segregation heretofore found to
have been practiced by IPS can be, and are imputed to the
State of Indiana.
2. The Superintendent of Public Instruction, The Indi
ana State Board of Education, and other responsible
A-27
agents and agencies of the State of Indiana, and the State
itself, have each practiced de jure segregation, both by
commission and omission.
3. The General Assembly of the State of Indiana has
the power, and it is its duty, to devise a metropolitan plan
of common school education in the Indianapolis metro
politan area, which may be to direct the reorganization of
IPS with other school coroporations, in whole or in part,
or to direct the transfer or exchange of IPS pupils to or
with other school corporations, in such a manner as to
vindicate the Fourteenth Amendment rights of plaintiffs
and all Negro children presently within the jurisdiction of
IPS to attend desegregated, non-racially identifiable
schools.
4. If the General Assembly fails to act in the manner
described within a reasonable time, this Court has the
power and the duty to devise its own plan, and to order
the defendant and the added defendant school corpora
tions, State Superintendent of Public Instruction, and The
Indiana State Board of Education to implement the same.
In short, paraphrasing the holding of the Sixth Circuit
in Bradley, et al, v. Milliken, et al, supra, this Court holds
that the record establishes that the State has committed
de jure acts of segregation and that the State controls the
instrumentalities whose action is necessary to remedy the
harmful effects of the State acts. There can be little doubt
that a federal court has both the power and the duty to
effect a feasible desegregation plan. Indeed, such is the
essence of Brown II. Brown v. Board of Education, 349
P.S. 294, 300-01 (1955). In the instant case the only feasible
desegregation plan involves the crossing of the boundary
lines between IPS and adjacent or nearby school districts
for the limited purpose of providing an effective desegre
A-28
gation plan. The power to disregard such artificial bar
riers is all the more clear where, as here, the State has been
guilty of discrimination which had the effect of creating
and maintaining racial segregation along school district
lines. United States v. Scotland Neck Board of Education,
407 U.S. 484, 489 (1972); Wright v. City of Emporia, 407
U.S. 451, 463 (1972); United States v. State of Texas, 447
F.2d 441, 443-44 (5 Cir. 1971); Haney v. County Board of
Education of Sevier County, 429 F.2d 364, 368 (8 Cir.
1970). See also Davis v. Board of School Commissioners,
402 U.S. 33, 36-38 (1971).
There exists, however, an even more compelling basis for
this Court’s crossing artificial boundary lines to cure the
State’s constitutional violations. The instant case calls np
haunting memories of the now long overruled and discred
ited “ separate but equal doctrine” of Plessy v. Ferguson,
163 U.S. 537 (1896). If we hold that school district boun
daries are absolute barriers to an IPS school desegregation
plan, we would be opening a way to nullify Brown v.
Board of Education which overruled Plessy, supra. VII.
VII.
The Area of a Viable Metropolitan Plan
In considering a metropolitan plan, it is apparent that,
to name a few factors, the area should be reasonable com
pact in size in relation to its center, should not be sepa
rated by massive natural obstacles, and otherwise should
be adaptable to the reasonably speedy transportation of
school children. Also, it would seem only reasonable to
examine whether or not the area to be considered has sig
nificant common interests with the area hub. The Court
now examines the situation with regard to the area de
picted on Figure 1.
A-29
In the first place, the Court knows judicially that the
entire area consists of virtually flat land, gently sloping
from the northeast to the southwest with a fall of approxi
mately 150 to 200 feet in approximately 35 miles. The area
contains no natural barriers of any consequence; two
fairly sizeable reservoirs, Geist and Eagle Creek, are lo
cated northeast and northwest, respectively, and pose no
obstacle to movement of people to or from the center of
the area, while White River is little larger that a robust
creek, and is crossed by numerous bridges. With a very
few exceptions, such as added defendants in their roles as
employers, all industrial plants and other major places of
employment within the area are concentrated either within
the boundaries of IPS or are within a few city blocks of
such boundaries in Wayne and Warren Townships and the
towns of Speedway and Beech Grove. Indeed, as the evi
dence discloses, many of the added defendant school
corporations are the largest single employers of labor
within their respective borders!
The employment situation is represented on Figure 6,
which shows graphically that, with the exception of the
City of Greenfield (not shown in Figure 1), more than
half (in most cases more than 60%) of the residents of
each unit shown on Figure 1 are employed in Marion
County—as a practical matter in IPS, or within a few city
blocks thereof. If the rather substantial number of workers
who did not list their place of employment are distributed
in proportion to those who did, it is apparent that the
true percentage of Marion County workers in the area is
even higher than as indicated.
The employment picture just described results in huge
flows of traffic from the “ bedroom” townships primarily
to Center, Warren and Wayne Townships of Marion
A-30
County each weekday morning, and back again each eve
ning. In order to accommodate this flow of traffic, the
Indianapolis area, with a huge assist from the Federal
government, is blessed with an extraordinarily efficient
highway network. The central area is completely looped by
Interstate Highway 1-465, a six-lane, divided, limited ac
cess highway, typical of such highways in the Interstate
System. The loop varies in its distance from Monument
Circle, the hub of downtown Indianapolis, from as little
as 4.50 miles, due south, to as much as 11.50 miles to the
northwest, averaging perhaps six or seven miles in dis
tance from such central reference point. Additionally,
there are no less than seven additional legs of Interstate
highways branching off of 1-465, and in some instances,
coming inside the 1-465 loop. Specifically, 1-74 runs north
west and southeast from 1-465, 1-69 runs northeast from
1-465, 1-70 runs southwest and due east from 1-465 (with
construction in progress to link up both legs through the
center of this city), and 1-65 runs northwest and southeast
from 1-465 (1-65 will also link both of its legs through the
center of the city, and the north leg is already open from
1-465 to 11th and Meridian Streets, in downtown
Indianapolis).
In addition, there are many other multilane highways
leading into, out of, and through the central area, many of
which are divided, such as S.R. 67 to the southwest and
northeast, U.S. 40 due east and west, S.R. 431 and U.S.
31, each running due north and south to southeast, S.R. 37
south and northeast, and S.R. 100, running along the north
and east sides, just inside 1-465. Such routes, and other
main highways, are illustrated on Figure 7.
Virtually all points of interest for cultural, sports, and
higher educational activities are located within IPS. For
example, as the Court knows judicially, Butler University,
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Marian College, Indiana Central College, the Indianapolis
campus of Indiana and Purdue Universities are so located,
as are the Indianapolis Zoo, the Children’s Museum, the
Indiana State Fairgrounds, the Indiana Capitol and office
buildings, all major federal offices, Clowes Hall (an out
standing theater for the performing arts), the Indianapolis
Sports Arena, the Indianapolis Convention Center, etc., are
all within IPS boundaries. The Indianapolis Art Museum
directly adjoins an IPS boundary, as does the Indianapolis
Motor Speedway (located in Speedway).
Just as the working parents of the suburbs drive back
and forth to work each day, so are most suburban children
bused to and from school. As shown on Figure 8, out of
114,696 students in suburban schools, 90,266 or 78.7% are
bused. The State reimburses each school corporation a por
tion of the cost of busing each child. (Also, it should be
noted, the State reimburses each added defendant, except
Speedway, a substantial portion of its costs of operation,
according to a complicated formula.) These bus routes are
extremely time consuming, as anyone knows who has the
misfortune to follow a bus down the highway, since the
custom in the suburban areas is to pick up the children
on virtually an individual basis. However, assuming that
children walk to a central school or other convenient
point, such as most IPS pupils do, and are then transported
non-stop to their designated school of attendance via the
major traffic arteries (during which period of transporta
tion they would be going opposite to the flow of commuter
traffic, and hence not impeded by it) the Court is of the
opinion that—given logical and most convenient
assignments—virtually all students could be delivered in
thirty minutes. Thirty or even forty-five minutes is not an
unreasonable time, and altogether comparable to that
required for such transportation elsewhere in Indiana.
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As shown in Figure 4, previously referred to, the white
pupil enrollment within IPS is sharply falling, while that
of Negro pupils is rising. On the other hand, the population
of each area in which added defendants operate their
schools, and the areas of non-defendant school districts
adjoining Marion County, are rapidly rising in population,
virtually all white. These changes are illustrated in Fig
ures 9,10, and 11.
It was argued by defendants that the Negro birth rate
and in-migration had declined to the point where further
increase in the black school population would not occur,
This not only begs the question of white migration to the
suburbs, but cannot be demonstrated statistically, as shown
by Figure 12, reflecting that estimated black enrollments
in grade 1 in 1973 will exceed black births in Indianapolis
in 1967—an obvious statistical impossibility, without con
tinued in-migration.
With regard to the defendant Greenfield, Union Town
ship of Eagle-Union and certain omitted townships of the
non-defendants Hamilton Southeastern, Southern Hancock,
and Northwestern, the Court is of the opinion that the
distances involved are impractical, and therefore makes no
recommendation that they be included in a metropolitan
plan. The Court does recommend that all other added
defendants be included in the metropolitan plan, as well
as Eagle-Union to the extent of Eagle Township.
The Court observes that, on the basis of the applicable
figures, the General Assembly may also wish to add the
non-defendant Center Grove, Clark-Pleasant, Southern
Hancock, Hamilton Southeastern to the extent of Delaware
and Fall Creek Townships, and Northwestern to the extent
of Moral Township to the plan. Its ability to do so is
undoubted. State v. Mutschler, supra. However, the Court
can make no finding or recommendation with respect to
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these corporations until such time as they have had their
day in court. Intervening plaintiffs are directed to inter
plead such corporations as additional added defendants
forthwith.
VIII.
Constitutionality of Certain Indiana Statutes
Questions posed by the Court in its previous opinion in
quired as to the constitutionality of certain Indiana stat
utes, specifically Chapter 186 of the Acts of 1961, IC 1971,
20-3-14-1, 20-3-14-10, Burns 28-2338, 2346, 2347 (1968 Cum.
Supp.); Chapter 52 of the Acts of 1969, IC 1971, 20-3-14-9,
Burns 28-2346a (1970 Cum.Supp.), and Chapter 173 of the
Acts of 1969, IC 1971, 18-4-1-1 to 18-4-5-4, Burns 48-9101,
et seq.
In the opinion of the Court such statutes, along with the
application or the misapplication of the School Reorgani
zation Act of 1959, certainly placed IPS in a strait jacket.
However, in view of the Court’s other findings and conclu
sions, it is unnecessary to consider the question of
unconstitutionality.
IX.
Interim Relief
The Court is of the opinion that it would he without
jurisdiction to order the exchange of pupils between IPS
and added defendants at this time. It is Negro children of
IPS and not suburban children who are being deprived of
a constitutional right, and so long as the various school
corporations remain separate the Court believes that it
would have no basis to direct that a suburban child be
transported out of its own school corporation. However,
the Court knows of no reason why added defendants should
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not immediately accept a reasonable number of Negro chil
dren from IPS on a transfer basis, effective as of the
beginning of the 1973-74 school year, and it is so ordered.
In this connection, the evidence shows that virtually all
added defendants routinely exchange or transfer pupils for
various educational purposes. The Court can think of no
more important form of special education for a Negro child
than going to school in an integrated environment.
As shown by evidence, Negro pupils constituted
39.5% of the 1972-73 enrollment of IPS, but constituted but
24.3% of the total enrollment in Marion County and 19.5%
of the total enrollment in the Figure 1 area for the same
period. Although a perfect racial balance in each school is
not required by law and will not be ordered, the General
Assembly will presumably give careful consideration to
these relative percentages. Also, the General Assembly
should keep in mind that “ tokenism” will not, in the
Court’s opinion, meet constitutional requirements.
With respect to IPS itself, it is not true that children
of both races may not be transported on otherwise ex
changed. As repeatedly pointed out by this and all other
Federal courts in the land, following, as we must, the pro
nouncements of the Supreme Court of the United States,
there is nothing sacred about the attendance zones within
a school corporation, no constitutional right in a student to
attend a particular school (except that a child of a minority
race has a right to attend a desegregated school), and so
IPS must immediately take steps to reduce the amount of
segregation in its system. However, final relief cannot he
had until the General Assembly acts, or this Court is com
pelled to devise its own plan because of default on the part
of the General Assembly.
The Court has given consideration to the average daily
attendance in the various schools of added defendants, as
shown by the evidence, and is pleased to note that such
averages are all well below that permitted by State
authorities. If each school accepted transfer of 5% of its
present enrollment, this would amount to an average of
little more than one child per classroom, which is certainly
a reasonable figure and one well below what the Court
believes a proper metropolitan plan should accomplish.
However, exceptions should be noted in two instances—-
that of Pike and Washington.
Washington already has a Negro percentage of 11.29%
and Pike a percentage of 8.17%. Washington has an
exemplary record of fair treatment of its minority stu
dents, and has also aggressively added minority race mem
bers to its faculty and staff. Primarily, however, because
of their present minority enrollments, transfers to these
added defendants should be limited.
It is therefore considered and ordered that, as interim
measures, the following be accomplished prior to the begin
ning of the 1973-74 school year :
1. IPS is directed to transfer to each of the added
defendants, except Washington and Pike, a number of
Negro students equal to 5% of the total 1972-73 enroll
ment of each transferee school, respectively, to transfer to
Washington 1 % of its 1972-73 white enrollment, and to
Pike 2% of its white enrollment for the same school year.
Provided, however, that the number of students who at
tended school in Union Township of Boone County for such
school year shall be deducted from the Eagle-Union total
before applying said percentage.
2- IPS shall not be required to transfer kindergarten
students, nor students commencing their twelfth year.
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A-36
The numbers of students in such grades enrolled in added
defendants’ schools for the year 1972-73 shall, however, be
counted in arriving at the total to which the applicable per
centage figure shall be applied.
3. Each of the added defendants is directed to accept
such transferee students and enroll them accordingly.
4. The cost of transportation and tuition of such stu
dents shall be the obligation of IP S ; provided, that IPS
shall be entitled to a credit for any excess State reimburse
ment paid to a transferee corporation, if any, as a result
of the presence of transferred pupils.
5. I f any teachers presently employed by IPS are
rendered surplus as a result of this order, and additional
teachers are needed by any added defendant as a result
hereof, first consideration shall be given by such added
defendant to employing a qualified IPS teacher.
6. The added defendants and IPS, through their
respective boards, superintendents, or other designated
agents are ordered to meet together forthwith, and to con
tinue to meet until the various logistical problems made
necessary by this order are resolved. Unresolved issues, if
any, may be referred to the Court for ruling.
7. IPS is directed to rearrange the enrollment patterns
in its elementary schools, effective at the beginning of the
1973-74 school year, such that each school will have a
minimum Negro enrollment of in the area of 15%. The
pairing or clustering of schools, and realignment of school
assignment zones will be employed. Pairing or clustering
should be of schools in close proximity, if possible. Such
action will result merely in an expansion of the neighbor
hood or community school concept, and reduce the neces
sity of busing. If after utilizing such procedures, certain
schools do not meet the required numbers, pairing or dus-
A-37
tering of schools in non-contiguous zones will be resorted
to. Swann, 402 TLS. at 28.
8. If transportation of pupils is required to accomplish
the result just ordered, IPS and defendant officials of IPS
are instructed that transportation of students of the two
races shall be generally proportionate. However, nothing
herein should be construed as preventing IPS from closing
obsolete, heavily black schools if no longer needed for
student housing, and in such event it will necessarily fol
low, in some cases, that a disproportionate number of black
students will require transportation.
9. IPS is further directed to rearrange the feeder pat
terns of its high schools, so as to secure enrollment of
Negro students in each school more nearly approaching
their numbers in the system. Specifically, the number of
such students in John Marshall High School should be in
creased to the area of 25%, and that at Shortridge reduced
to not more than the area of 60%. In making transfers of
high school pupils to added defendants, the Board should
also keep in mind that Negro percentages at Arlington
and Broad Ripple are already somewhat past the 40% level,
and should be reduced, if possible.
10. All defendants who have not done so are directed to
institute appropriate in-service training courses for their
respective faculties and staff, and otherwise to orient their
thinking and those of their pupils toward alleviating the
problems of segregation.
In this last connection, the Court was pleased to learn
from the evidence of the recognition given to Negro stu
dents by their fellow white students in the few suburban
schools which they attend, and of the honors, both scho
lastic and otherwise, which such Negro students have
earned in such schools. These facts, put in evidence by
A-38
added defendants, indicate to the Court that children are
basically inclined towards judging each other on the
merits and that, if permitted to follow their own decent
instincts, will accept each other on the basis of equality,
without racial hatred. There just may be a message in this
evidence for the adult world.
11. John 0. Moss and John Preston Ward, attorneys
for intervening plaintiffs and their class, are entitled "to
recover their reasonable attorneys fees and expenses, and
intervening plaintiffs are entitled to recover their costs.
Such attorneys are directed to submit their respective
petitions for fees and allowances. Apportionment of the
cost of same is reserved.
12. The Court retains continuing jurisdiction herein.
All of the above is considered, ordered, and adjudged
this 20th day of July, 1973.
/ s / S. HUGH DILLIN
S. HUGH DILLIN, Judge
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
F I L E D
U.S. District Court
Indianapolis Division
Dec 61973
Southern District
of Indiana
Arthur J. Beck
Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff,)
)
DONNY BRURELL BUCKLEY and )
ALYCIA MARQUESE BUCKLEY, )
By their parent and nest friend, Ruby)
L. Buckley, on behalf of themselves)
and all Negro school age children re-)
siding in the area served by original)
defendants herein, )
)
Intervening Plaintiffs,)
)
vs. ) NO. IP 68-C-225
)
THE BOARD OF SCHOOL COMMIS-)
SIONERS OF INDIANAPOLIS, IN-)
DIANA; )
KARL R. KALP, as Superintendent of)
Schools; )
ERLE A. KIGHTLINGER, as President)
of The Board of School Commission-)
ers; )
A-39
A-40
JESSIE JACOBS, )
CABL J. MEYER, )
PAUL E. LEWIS, )
LESTER E. NEAL, )
CONSTANCE R. VALDEZ, )
W. FRED RATCLIFF, Members of The)
Board of School Commissioners of the)
City of Indianapolis, )
Defendants,)
)
OTIS R. BOWEN, as Governor of the)
State of Indiana; )
)
THEODORE SENDAK, as Attorney)
General of the State of Indiana, )
)
HAROLD H. NEGLEY, as Superintend-)
ent of Public Instruction of the State)
of Indiana, )
Added Defendants,)
)
THE METROPOLITAN SCHOOL )
DISTRICT OF DECATUR TOWN- )
SHIP, MARION COUNTY, INDIANA,)
)
THE FRANKLIN TOWNSHIP COM-)
MUNITY SCHOOL CORPORATION,)
MARION COUNTY, INDIANA, )
)
THE METROPOLITAN SCHOOL )
DISTRICT OF LAWRENCE TOWN-)
SHIP, MARION COUNTY, INDIANA,)
)
THE METROPOLITAN SCHOOL )
DISTRICT OF PERRY TOWNSHIP,)
MARION COUNTY, INDIANA, )
)
THE METROPOLITAN SCHOOL )
DISTRICT OF PIKE TOWNSHIP.)
MARION COUNTY, INDIANA, )
)
A-41
THE METROPOLITAN SCHOOL )
DISTRICT OF WARREN TOWN-)
SHIP, MARION COUNTY, INDIANA,)
)
THE METROPOLITAN SCHOOL )
DISTRICT OF WASHINGTON TOWN-)
SHIP, MARION COUNTY, INDIANA,)
)
THE METROPOLITAN SCHOOL )
DISTRICT OF WAYNE TOWNSHIP,)
MARION COUNTY, INDIANA, )
)
SCHOOL CITY OF BEECH GROVE,)
MARION COUNTY, INDIANA, )
)
SCHOOL TOWN OF SPEEDWAY,)
MARION COUNTY, INDIANA, )
THE GREENWOOD COMMUNITY)
SCHOOL CORPORATION, JOHNSON)
COUNTY, INDIANA, )
)
CARMEL-CLAY SCHOOLS, HAMIL-)
TON COUNTY, INDIANA, )
)
MT. VERNON COMMUNITY SCHOOL)
CORPORATION, HANCOCK COUNTY,)
INDIANA, )
)
GREENFIELD COMMUNITY SCHOOL)
CORPORATION, HANCOCK COUNTY,
INDIANA, )
MOORESVILLE CONSOLIDATED )
SCHOOL CORPORATION, MORGAN)
COUNTY, INDIANA, )
PLAINFIELD COMMUNITY SCHOOL)
CORPORATION, HENDRICKS )
COUNTY, INDIANA, )
)
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AVON COMMUNITY SCHOOL COR-)
PORATION, HENDRICKS COUNTY,)
INDIANA, )
BROWNSBURG COMMUNITY j
SCHOOL CORPORATION, HEND- )
RICKS COUNTY, INDIANA, )
EAGLE-UNION COMMUNITY j
SCHOOL CORPORATION, BOONE)
COUNTY, INDIANA, )
THE INDIANA STATE BOARD OF)
EDUCATION, a public corporate body,)
)
Added Defendants,)
CITIZENS FOR QUALITY SCHOOLS,)
INC., )
Intervening Defendant')
COALITION FOR INTEGRATED )
EDUCATION, )
Amicus Curiae,)
HAMILTON SOUTHEASTERN )
SCHOOLS, HAMILTON COUNTY, )
INDIANA, )
CENTER GROVE COMMUNITY )
SCHOOL CORPORATION, JOHN-)
SON COUNTY, INDIANA, )
CLARK-PLEASANT COMMUNITY )
SCHOOL CORPORATION, JOHN-)
SON COUNTY, INDIANA, )
SOUTHERN HANCOCK COUNTY j
COMMUNITY SCHOOL CORPOR- )
ATION, HANCOCK COUNTY, )
INDIANA )
)
A-43
NORTHWESTERN CONSOLIDATED)
SCHOOL DISTRICT, SHELBY )
COUNTY, INDIANA, )
)
Additional Added Defendants.)
SUPPLEMENTAL MEMORANDUM OF DECISION
I. Introduction
Heretofore, on August 18, 1971, the Court filed herein
its Memorandum of Decision, incorporating its findings
of fact and conclusions of law, and making certain interim
orders, with respect to the issues presented by the com
plaint of the original plaintiff, United States of America,
and the answer of the original defendants, The Board of
School Commissioners of the City of Indianapolis, the
individual members of such Board, and the Board’s
appointed Superintendent of schools. Such decision, which
will be referred to hereafter as “ Indianapolis I/ ’ is re
ported in 332 F.Supp. 655, a ff ’d 474 F.2d 81 (7 Cir. 1973),
cert. den. 37 L,Ed.2d 1041 (1973).
Thereafter, on July 20, 1973, the Court filed herein a
second Memorandum of Decision, incorporating its find
ings of fact and conclusions of law, and making certain
interim orders, with respect to certain issues presented
by the complaint of the original and added plaintiffs,
Bonny Brurell Buckley, et al, and the answers of the origi
nal and added defendants. Such decision will be referred
to hereafter as “ Indianapolis II,” is reported in ------F.
Supp. } 37 Ind.Dec. 524, and is now on appeal to the Court
of Appeals for the Seventh Circuit, Nos. 73-1968 to 73-
1984, incl.
The key decision made in Indianapolis I was that the
Indianapolis public school system (hereafter “ IPS” ) was
A-44
being operated by the original defendants, and had been
operated by their predecessors in office, as a system prac
ticing de jure segregation of students of the Negro race.
It was therefore held that the Negro students were being
denied the equal protection of the laws, as guaranteed by
the Fourteenth Amendment. Brown v. Board of Education,
347 U.S. 483 (1954). Certain interim measures tending
to prevent further segregation were ordered, pending con
sideration of the questions to be presented and later
decided in Indianapolis II, it being understood that the
law required the defendants to take affirmative action to
desegregate IPS Green v. County School Board, 391 U.S.
430 (1968).
The key decisions made in Indianapolis II were that
(1 ) as a practical matter, desegregation promising a rea
sonable degree of permanence could not be accomplished
within the present boundaries of IPS, and (2) added
defendant officials of the State of Indiana, their predeces
sors in office, the added defendant The Indiana State
Board of Education, and the State itself have, by various
acts and omissions, promoted segregation and inhibited
desegregation within IPS, so that the State, as the agency
ultimately charged under Indiana law with the operation
of the public schools, has an affirmative duty to desegre
gate IPS.
The Court also held in Indianapolis II that IPS could
be effectively desegregated either by combining its terri
tory with that of all or part of the territory served by
certain added defendant school corporations, into a
metropolitan system or systems, and then reassigning
pupils within the expanded system or systems thus cre
ated, or by transferring Negro students from IPS to added
defendant school corporations, either on a one-way or an
A-45
exchange basis. It further held that the State, through its
General Assembly, should be first afforded the opportunity
to select its own plan, but that if it failed to do so within
a reasonable time, the Court would have the power and
the duty to promulgate its own plan, and place it in effect.
Bradley, et al, v. Milliken, et al, — F.2d — (6 Cir. 1973).
See Baker v. Carr, 369 U.S. 186 (1962); Reynolds v. Sims,
377 U.S. 533 (1964).
By way of affirmative relief pending action by the
General Assembly, the Court ordered IPS to effect pupil
reassignments for the 1973-74 school year sufficient to
bring the number of Negro pupils in each of its elementary
schools to approximately 15%, which has been accom
plished. The Court also directed IPS to transfer to certain
added defendant school corporations, and for such corpo
rations to receive and enroll, a number of Negro students
equal to 5% of the 1972-73 enrollment of each transferee
school, with certain exceptions. This order was, on August
8, 1973, stayed by the Court until the 1973-74 school year
by an order made in open court but not previously reduced
to writing.
At this time, certain matters have been presented to
the Court, both formally and informally, which require
further rulings in the presmises. Such rulings are now
made, as hereafter set out, as supplementary to or, in some
instances, in lieu of rulings heretofore entered in Indian
apolis II, as heretofore modified. II.
II. The Question of a “Reasonable Time” for State
Action
As stated, it was the Court’s conclusion that the State
should be afforded the opportunity, for a reasonable period
of time, to discharge its affirmative duty to desegregate
A-46
IPS. The question has arisen as to how long a time is
reasonable.
As the Court knew judicially at the time it entered its
decision in Indianapolis 11, the General Assembly was
scheduled to organize in November, 1973, for a session
to begin in early January, 1974. It has so organized, and
numerous bills have already been introduced—none, to the
Court’s knowledge, having to do with the subject at hand.
As the Court also knows judicially, various legislative
leaders have publicly announced that the coming session
is expected to be short, and targeted for conclusion within
a matter of a month or so.
Under the circumstances, considering the urgency of the
problem presented, the fact that members of the General
Assembly have had since July 20, 1973 to consider the prob
lem, and the anticipated length of the coming legislative
session, the Court considers a reasonable time within which
the General Assembly should act to be the end of its Janu
ary, 1974 session or February 15, 1974, whichever date
is sooner. The Court also considers that any legislation
adopted by the General Assembly on the subject of the
desegregation of IPS should be effective for the 1974-75
school year. III.
III. The Duty of the General Assembly
In its opinion in Indianapolis II, the Court pointed out
in section IV thereof that the ultimate responsibility for
the operation of all public schools in Indiana lies in the
General Assembly, and that it has the undoubted power
to desegregate IPS by appropriate legislation, citing the
Indiana Constitution and some twenty cases decided by
the Indiana Supreme and Appellate Courts. It also held
that it was the General Assembly’s duty to do so, based
A-47
upon its findings from the evidence that it is not possible
for the IPS School Commissioners to bring about a lasting
desegregation within IPS boundaries.
In reviewing that opinion, it now occurs to the Court
that it perhaps placed undue stress on the General
Assembly’s power, and not enough on its duty; this failure
of direction on the part of the Court may account for the
General Assembly’s seeming lack of attention to the prob
lem to date, as the Court has no reason to doubt that the
able members of that body will do their sworn duty to sup
port the Constitution, once that duty is more clearly de
fined. By “ sworn duty,” the Court of course refers to the
oath taken by each member of the General Assembly pursu
ant to Article 6, Clause 3 of the Constitution of the United
States, which reads, in applicable part, as follows:
“ •.. (T)he Members of the several State Legislatures,
and all executive and judicial Officers, both of the
United States and of the several States, shall be bound
by Oath or Affirmation, to support this Constitution;
As to what that duty entails, in this instance, may be
best ascertained by the guidelines laid down by the
Supreme Court of the United States, whose decisions and
interpretations of the Constitution are final and binding
on all citizens, including elected and appointed public offi
cials, unless thereafter changed by that Court or by Consti
tutional amendment. Mar bury v. Madison (U.S.) 1 Cranch
137 (1803). It is such guidelines which this Court has en
deavored to follow to date in this rather difficult case—not
because of any personal views of the Court, but for the
simple reason that they constitute the law of the land, in
every State and Territory, and the Court, pursuant to its
own oath, may do no less. These guidelines, expressed in
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direct quotation from significant opinions of the Supreme
Court, are as follows:
“ Does segregation of children in public schools solely
on basis of race, even though the physical facilities
and other ‘ tangible’ factors may he equal, deprive
the children of the minority group of equal educational
opportunities! We believe that it does___
“ We conclude that in the field of public education
the doctrine of ‘ separate but equal’ has no place
. . . Plaintiffs . . . are, by reason of the segregation
complained of, deprived of the equal protection of
the laws guaranteed by the Fourteenth Amendment..
. . . ” Brown v. Board of Education of Topeka, 347
U.S. 483 (1954) (Brown I)
“ . . . (T)he courts may consider problems related to
administration, arising from the physical condition
of the school plant, the school transportation system,
personnel, revision of school districts and attendance
areas into compact units to achieve a system of
determining admission to the public schools on a non-
racial basis, and revision of local laws and regulations
which may be necessary in solving the foregoing prob
lems. . . . ” Brown v. Board of Education of Topeka,
349 U.S. 294 (1955) (Brown II)
“ . . . (T)he members of the School Board and the
Superintendent of Schools are local officials; from
the point of view of the Fourteenth Amendment, they
stand in this litigation as the agents of the State.
# * #
“ Article 6 of the Constitution makes the Constitution
the ‘ supreme Law of the Land.’ . . . (T)he federal judi
ciary is supreme in the exposition of the law of the
Constitution. . . . It follows that the interpretation
of the Fourteenth Amendment enunciated by this
Court in the Brown Case is the supreme law of the
land, and Art 6 of the Constitution makes it of binding
effect on the States ‘ any Thing in the Constitution or
A-49
Laws of any State to the Contrary notwithstanding.’
Every state legislator and executive and judicial offi
cer is solemnly committed by oath taken pursuant to
Art 6, cl 3, ‘ to support this Constitution.’ . . . No state
legislator or executive or judicial officer can war
against the Constitution without violating his under
taking to support it. . . . ” Cooper v. Aaron, 358 U.S. 1
(1958)
“ Delays in desegregating school systems are no longer
tolerable.” Bradley v. School Board of Richmond, 382
TT.S. 103 (1965)
“ The burden on a school board today is to come for
ward with a plan that promises realistically to work,
and promises realistically to work now.
“ The obligation of the district courts . . . is to assess
the effectiveness of a proposed plan in achieving
desegregation. . . . The matter must he assessed in
light of the circumstances present and the options
available in each instance.
# # #
“ ‘ “ Freedom of choice” is not a sacred talisman;
it is only a means to a desired end—the abolition of
the system of segregation and its effects. . . . (I ) f it
fails to undo segregation, other means must he used
to achieve this end.’ ” Green v. School Board of New
Kent County, 391 U.S. 430 (1968)
“ We do not hold that ‘ free transfer’ can have no place
in a desegregation plan. But like ‘ freedom of choice,’
if it cannot he shown that such a plan will further
rather than delay conversion to a unitary, non-raeial,
nondiscriminatory school system, it must be held un
acceptable.” Monroe v. Board of Commissioners, 391
U.S. 450 (1968)
“ Nearly 17 years ago this Court held, in explicit
terms, that State-imposed segregation by race in
public schools denies equal protection of the laws. At
A-50
no time has the Court deviated in the slightest degree
from that holding or its constitutional underpinnings.
# # #
“ The objective today remains to eliminate from the
public schools all vestiges of state-imposed segre
gation. . . .
“ If school authorities fail in their affirmative obli
gations under these holdings, judicial authority may
be invoked. Once a right and a violation have been
shown, the scope of a district court’s equitable powers
to remedy past wrongs is broad, for breadth and flexi
bility are inherent in equitable remedies.
.v. .y. .Y.-a- -.V -A-
‘ ‘ The school authorities argue that the equity powers
of federal district courts have been limited by Title
IY of the Civil Eights Act of 1964, 42 USC § 2000c.
The language and the history of Title IV shows that
it was enacted not to limit but to define the role of
the Federal Government in the implementation of the
Brown I decision.. ..
“ . . . The proviso in § 2000c-6 is in terms designed
to foreclose any interpretation of the Act as expand
ing the existing powers of federal courts to enforce
the Equal Protection Clause. There is no suggestion
of an intention to restrict those powers or withdraw
from courts their historic equitable remedial powers.
“ . . . Bus transportation has been an integral part
of the public education system for years. . . . Eighteen
million of the Nation’s public school children . . . were
transported to their schools by bus in 1969-70 in ah
parts of the country.
A-51
“ . . . The District Court’s conclusion that assignment
of children to the school nearest their home serving
their grade would not produce an effective dismantling
of the dual system is supported by the record.
“ Thus the remedial techniques used in the District
Court’s order [pairing, busing, etc.] were well within
that court’s power to provide equitable relief. . . .”
Stvann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S.
1 (1971)
“ As we have held, ‘ neighborhood school zoning’
. . . is not the only constitutionally permissible remedy;
nor is it per se adequate to meet the remedial respon
sibilities of local boards. Having once found a viola
tion, the district judge or school authorities should
make every effort to achieve the greatest possible de
gree of actual desegregation, taking into account the
practicalities of the situation. A district court may
and should consider the use of all available techniques
including restructuring of attendance zones and both
contiguous and noncontiguous attendance zones. . . .
The measure of any desegregation plan is its effective
ness.
‘ ‘ On the record before us, it is clear that.. . inadequate
consideration was given to the use of bus transporta
tion and split zoning. . . . ” Davis v. Board of School
Commrs., 402 TJ.S. 33 (1971)
“ Just as the race of students must be considered in
determining whether a constitutional violation has
occurred, so also must race be considered in formulat
ing a remedy. To forbid, at this state, all assignments
made on the basis of race would deprive school author
ities. of the one tool absolutely essential to fulfillment
of their constitutional obligation to eliminate dual
school systems.
“ Similarly, the flat prohibition against assignment
of students for the purpose of creating a racial balance
must inevitably conflict with the duty of school author
ities to disestablish dual school systems. . . . (T)he
A-52
Constitution does not compel any particular degree
of racial balance or mixing, but when past and contin
uing constitutional violations are found, some ratios
are likely to be useful starting points in shaping a
remedy.. . .
“ We likewise conclude that an absolute prohibition
against transportation of students assigned on the
basis of race, ‘ or for the purpose of creating a balance
or ratio,’ will similarly hamper the ability of local
authorities to effectively remedy constitutional viola
tions. . . . (B)us transportation has long been an inte
gral part of all public educational systems, and it is
unlikely that a truly effective remedy could be devised
without continued reliance upon it.” North Carolina
Bd. of Ed. v. Swann, 402 U.S. 43 (1971)
IV. Guidelines of this Court— General
It is, of course, recognized by the Court that it cannot
issue a positive order to the General Assembly to enact
specific legislation. It is for such reason that the Court
has suggested several different methods by which the Gen
eral Assembly could approach the problem of effectively
desegregating IPS, and it does not imply that there may
not be other equally effective methods which may occur
to that body.
Within the context of what has been suggested as possi
ble alternatives, however, the Court offers further observa
tions, as follows:
(1) With respect to the concept of one metropolitan
school district, embracing the area designated in Figure
1, attached to the Court’s opinion in Indianapolis II, it
is apparent that some advantages would be obtained from
such a system. To name a few, a uniform tax base would
be provided for the education of the more than 200,000
pupils in the combined system, and economy in operation
A-53
could be achieved through central purchasing and reduction
of administrative overhead. Complete desegregation would
be simplified. On the other hand, it may be that such a sys
tem would be too large in terms of difficulty of adminis
tration and remoteness of the central office from school
patrons.
(2) With respect to the concept of creating* various
new metropolitan districts—for example, six or eight to
replace the present twenty-four pictured on Figure 1, it
is apparent that some of the advantages above noted would
be reduced, and some of the disadvantages improved.
Another alternate, of course, would be to create one metro
politan system for taxing purposes, which in turn would
be subdivided into several semi-autonomous local districts.
So long* as IPS and the local districts are each effectively
desegregated, the method used would be constitutionally
immaterial.
(3) With respect to the concept of permitting the
present school corporations shown on said Figure 1 to
remain as is, insofar as geography and control is con
cerned, such a solution would of course preserve local
autonomy, and this Court would have no reason to dis
approve such a solution, so long as each such corporation
is required to participate in the desegregation of IPS. Put
m other terms, local autonomy for such corporations is,
under the law of Indiana, a privilege—not a right—all
as discussed in detail in Indianapolis II. The consideration
for permitting the various corporations to continue their
separate existences might therefore be stated to be their
participation in a meaningful plan to desegregate IPS.
Some of the pertinent facts which the General Assembly
may wish to consider in this regard are set out in the next
two sections hereof.
A-54
V. Transfer of Pupils
When speaking of the transfer of pupils, the first logical
question is as to the numbers involved. In this connection,
the focus must be on the elementary schools within IPS
which were not affected by the interim plan adopted by
the Court for the present school year, and which have an
enrollment of Negro pupils exceeding 80%. There are nine
teen such schools, fourteen of which have Negro enroll
ments in excess of 97%. Two additional schools have
enrollments exceeding 60%, and should also be considered.
The total enrollment of black students in these 21 schools,
excluding kindergarten and special education students, is
approximately 11,500.
The General Assembly might order the exchange of all
or a substantial part of these 11,500 students with students
from the suburban school corporations. For purposes of
illustration, if it were determined to desegregate such
schools on the basis of approximately 85% white—15%
black, then about 9,775 black children would need to be
transferred to suburban schools, and about the same num
ber of non-black children would need to be transferred
to IPS.
There is case law to the effect that transfers of students
must be made on an approximately equal basis insofar
as the races are concerned, unless there is good reason
why this should not be done. In such cases it has been held
that to impose the “ burden” of being transported wholly
or largely upon students of one race is yet another form
of racial discrimination and in violation of the Fourteenth
Amendment rights of the group transported. United States
v. Texas Education Agency, 467 F.2d 848 (5 Cir. 1972);
L ee v. Macon County Board o f Education, 448 F.2d 746
(5 Cir. 1971); H aney v. County Board o f Education of
A-55
Sevier County, 429 F.2d 364 (8 Cir. 1970). Such cases, if
followed, would seem to mandate so-called “ two-way” bus
ing, absent compelling reasons to the contrary.
The Supreme Court has not specifically addressed itself
to this question. However, it is worthy of note that in
McDaniel v. Barresi, 402 U.S. 39 (1971), that Court ap
proved a desegregation plan adopted by the Clarke County
(Ga.) Board of Education which reassigned pupils in five
heavily Negro “ ‘ pockets’ ” to other attendance zones,
busing many of them, without any corresponding busing
of whites. Other “ one-w7ay” busing plans have likewise
been approved, depending on the factual setting. Hart v.
County School Board, 459 F;2d 981 (4 Cir. 1972); Norwalk
Core v. Norwalk Board of Education, 423 F.2d 121 (2 Cir.
1970). Indeed, the Fourth Circuit has flatly held that a
pattern of assigning Negro students to formerly all-white
schools, without requiring similar travel on the part of
whites, does not violate the equal protection clause of the
Fourteenth Amendment. Allen v. Asheville City Board of
Education, 434 F.2d 902 (4 Cir. 1970). Moreover, analysis
of the cases cited in the preceding paragraph indicates
that they have been decided on their particular facts, even
though some of the language is in terms of absolute require
ments.
The Court does not find it necessary to attempt to
resolve this question in terms of constitutional absolutes,
nor could it appropriately do so on the present record,
since the question has not been squarely presented. How
ever, the record does contain undisputed evidence that
virtually all of the twenty-one IPS elementary schools
above referred to (located as shown on Figure 13,
attached) are substantially out of line with the require
ments of present Indiana law and regulations establishing
minimum acreage requirements for elementary schools.
A-56
The regulations require seven acres for schools with 200
or less pupils, plus an additional acre for each additional
100 pupils or major fraction thereof. Burns Indiana Rules
& Regs., § (28-415)-3. As reflected in Figure 14, attached,
only one of these schools meets acreage requirements. Most
schools are grossly deficient in the space required—for
example, the pupil density at School 66 is 544.21 pupils
per acre, and is 493.57 per acre at School 42 and 481.33
per acre at School 73. By way of comparison, the pupil
density at School 42, taking into consideration its enroll
ment and the State formula, should be 57.58 pupils per
acre. It is thus overcrowded by 857.18% !
The evidence further shows that, with a few exceptions,
the twenty-one schools in question are among the older
schools in the IPS system—some dating back 100 years,
more or less. Although there is no evidence that the Board
of School Commissioners has not maintained such schools
as well as could be expected under the circumstances, it
is a fair inference, subject to further proof, that the type
of construction, use of flammable materials, etc., would
fail by a wide margin to meet safety standards for newly
constructed schools. On the other hand, the evidence dis
closes that the school plants maintained by added defend
ant school corporations are, for the most part, relatively
new and in compliance with acreage and safety standards.
On the basis of the foregoing facts, therefore, this Court
would not feel justified in condemning out of hand a “ one
way” suburban busing plan involving pupils from such
of the twenty-one schools as may seem to the Board, on
analysis, to afford inadequate educational plant facilities,
viewed in the light of current standards. Additionally, such
a plan would involve transportation of substantially fewer
pupils, and therefore be less expensive.
A-57
Finally, unless convinced to the contrary by additional
evidence in an appropriate hearing, this Court is not pre
pared to characterize busing as an unmitigated “ burden.”
Although it might appear to a child to be “ burdensome”
to be deprived of walking to school in the warm days of
May and September (which presupposes that children do
not like to ride in motor vehicles with their neighborhood
friends—a somewhat novel concept to the Court), the
Court doubts that it would seem such a burden to be trans
ported in a heated bus through the rain, sleet, and snow
so familiar in this latitude during other months of the
school term. As pointed out in Indianapolis II, nearly 80%
of suburban pupils (more than 80% since the elimination
of Greenfield) are bused to school at the present time,
without complaint.
The Court is not of the opinion that it would be wise
to require transportation of kindergarten pupils, primarily
because of their age, nor to transport special education
pupils because of the various special problems which would
inevitably arise in this regard. Further, the Court recog
nizes that special problems arise with respect to high
school pupils, which might render their transfer counter
productive once their high school training has begun. As
to pupils in grades 1-8, however, the Court knows.of no
reason why transfer of pupils, in whatever fashion the
General Assembly may elect, would not be reasonable and
practical to accomplish the constitutional duty imposed
by the Supreme Court, with the understanding, of course,
that a transferred elementary pupil would therafter rou
tinely continue to be transferred to the same transferee
school corporation for continued education through high
school.
If, for example, transfers were made of Negro pupils
from those of the twenty-one schools failing to meet
A-58
modern standards to the schools of added defendants situ
ate within the geographical area depicted in said Figure
1 , all of those transferred would be afforded education
in a desegregated setting. It should be no great task to
desegregate the remaining school or schools within IPS.
The Court estimates, based on the statistics and projec
tions in the record, that it would be necessary for the
suburban schools within such Figure 1 area, excluding the
Washington Township and Pike Township schools, to
accept transfer of IPS elementary pupils in grades 1-8
in number equivalent to approximately 15% of their 1973-
74 enrollments in the same grades in order to accomplish
this result.
After such transfers were accomplished, the racial
percentages in each school to which transfers were made
would be approximately 87% white and 13% Negro—a
ratio which, by coincidence, would approximate that of
the nation as a whole. As regards Washington Township,
its minority percentage as projected for the present school
year is already this high, so that general 1-8 transfers to
this defendant would not appear to be indicated; however,
the acceptance of pupil initiated transfers from IPS to its
Everett J. Light Industrial Center, to the extent that
vacancies exist, might well be required. Pike Township
likewise has a substantial minority percentage at this time;
however, a number of transfers sufficient to increase such
percentage to a figure approximating that of the other
suburban schools should be considered. VI.
VI. Costs and Mechanics of Transfers
One advantage of the dual transfer system would be
that if approximately equal numbers of pupils were trans
ferred to and from suburban schools, tuition, transporta
tion, and other costs would balance out as between IPS
A-59
and the various other corporations, and no additions to
school plants would be necessary. On the other hand, more
pupils would be transported, thus increasing this total cost,
and such a system would continue the use of the IPS
antique buildings and grounds.
A one-way transfer plan would involve substantial tui
tion payments from IPS to the transferee schools. To the
extent that such tuition applied only to the actual per
capita cost of instruction, utilities, maintenance service,
etc., no hardship would be imposed upon IPS, because it
is apparent that IPS expense for such services would be
correspondingly reduced. However, the present transfer
law, I.C. 1971, 20-8.1-6-1 through 20-8.1-6-15, as amended,
Burns §§ 28-5001 through 28-5015, also contemplate
charges related to the fair value of the transferee school
plant, tax levies for building purposes, and other items
related to capital outlay of the transferee school. Consid
ering that the State of Indiana is itself at fault in this
matter, as previously found, the General Assembly should
consider whether the State should be required to con
tribute the necessary amount to compensate the transferee
corporations for the use of their respective plants. Such
a provision, with an appropriate formula, could be adopted
as an amendment to the existing transfer law.
It is possible that the General Assembly could discharge
its duty in this matter simply by amending the existing
transfer law. The purpose of such law, as the Court under
stands it, is to permit the better accommodation of school
children. As pointed out in Section III hereof, the Supreme
Court of the United States has held that for a minority
child to be compelled to attend a segregated school denies
the Fourteenth Amendment rights of such child: in effect,
the child is not properly accommodated. Therefore, if the
transfer law were amended to recognize transfers to
A-60
accomplish desegregation of a school system which has
been finally adjudged to have been segregated de jure (as
is true in the case of IPS), a basis would be established
for other necessary changes regarding time of payment
of tuition, the share to be borne by the State, the matter
of responsibility for and payment of the cost of transpor
tation, and similar details. Since the actual number or per
centage of pupils to be transferred is more of an adminis
trative detail than a legislative function, this matter could
be left to the discretion of the local school board or boards,
subject to the approval of the court having jurisdiction
of the case.
VII. Vacation of Certain Previous Orders
The various orders contained in Indianapolis II, and
heretofore stayed by the Court, requiring certain trans
fers of pupils from IPS to added defendants are each
vacated and set aside. It should be understood, however,
that the reason for this ruling is simply that it would he
inconsistent to permit such orders to stand, although
stayed, inasmuch as the General Assembly, in the exercise
of its discretion, may desire to adopt an acceptable plan
which would be inconsistent with such orders.
Moreover, the 5% order contained in Indianapolis II
was designated as a mere interim order, it having been
the Court’s opinion that such amount of transfers would
have been the most which could reasonably be expected
to be accomplished within the limited time between the
date of the order and the beginning of the 1973-74 school
term. As it happened, added defendants were able to con
vince the Court that even this limited relief could not be
accomplished within the time available, hence the stay.
At this time the Court looks forward to a permanent solu
tion to the problem of desegregating IPS, which will either
A-61
come from the General Assembly, as it should, or from
this Court in the event of legislative default. From what
has been said herein, it should be apparent that the Court
does not at this time consider 5% transfers as an adequate
permanent solution. Indeed, if the solution is handed back
to the Court by default, additional scrutiny will necessarily
be given to complete consolidation along metropolitan
lines.
However, by vacating its previous orders, it is noi the
intention of the Court to render moot the appeals now
being- prosecuted by added defendants. To the contrary,
the Court is of the opinion that its conclusions of law as
contained in Indianapolis 11, as modified and supple
mented herein, regarding the duty of the State to desegre
gate IPS, the State’s power to adopt a metropolitan plan
or transfer plan for such purpose, and the duty of the Court
to promulgate such a plan in default of State action within
the time presented, all involve controlling questions of law
as to which there is substantial ground for difference of
opinion, and that an immediate appeal from such rulings
will materially advance the ultimate termination of this
litigation. It is therefore respectfully suggested that the
Court of Appeals determine said appeals on the merits,
as provided in 28 U.S.C. § 1292(b).
Further, the Court in its previous order of July 20, 1973,
Indianapolis II, entered the following: “ All defendants
who have not done so are directed to institute appropriate
m-service training courses for their respective faculties
and staff, and otherwise to orient their thinking and those
of their pupils toward alleviating the problems of segrega
tion.” This order was not, and is not stayed, and neither
is it vacated. If therefore remains as a continuing and final
order, operating against added defendant school corpora
tions, and accordingly does not appear to be moot.
A-02
Considered and ordered this 6th day of December, 1973,
/ s / S. HUGH DILLIN
S. HUGH DILLIN, Judge
Copies to : Counsel of record
Information copies: All members, General Assembly of
Indiana
A.H.S. — A rlin g to n H igh Schoo l
A.T.H.S. — Arsenal Technica l H igh Schoo l
i.R.H.S. — Broad R ipp le H igh Schoo l
C.A.H.S. — C rispus A ttu ck s H igh Schoo l
E.M.H.S, — Em m erich M anua l H igh Sclrool
G.W.H.S. — George W ash ington H igh Schoo l
H.E.W.H.S. - Harry E. W ood H igh Schoo l
J.M.H.S. — John Marshall H igh Schoo l
N.H.S. — Northw est H igh Schoo l
S.H.S. — Shortridge H igh Schoo l
T.C.H.H.S. — Thom as Carr How e High School
Kennedy Middle School
INDIANAPOLIS
0 * H % 1
O - 80-100% Bl ac k
£ 3 - 60-80% Bl ac k
X - C lo se d
F i g . 13
A-63
A B C D E F G
1 853 3.4 14 250.88 60.92 411.81
27 845 1.75 13 482.85 65.00 742.84
41 1157 3.0 17 385.66 68.05 566.73
42 691 1.4 12 493.57 57.58 857.18
43 811 2.6 13 311.92 62.38 500.03
44 1036 3.5 15 296.00 69.06 428.61
45 884 2.5 14 353.60 63.14 560.02
48 589 3.6 11 163.61 53.54 305.58
53 1068 10.0 16 106.80 66.75 160.00
56 655 1.7 12 385.29 54.58 705.91
60” 1152 2.9 17 397.24 67.76 586.24
63 383 1.5 9 255.33 42.55 600.07
66 1034 1.9 15 544.21 68.93 789.51
71 1274 8.2 18 155.36 70.77 219.52
73 1083 2.25 16 481.33 67.68 711.18
75 793 1.75 13 453.14 61.00 742.85
76 594 1.5 11 396.00 54.00 733.33
83 496 11 .0 10 45.09 49.60 -9.10
110 1296 10.6 18 122.26 72.00 194.26
Ken.* 552 1.5 11 368.00 50.18 733.35
** School 60 and Mapleton-Fall
Kennedy Middle School
Creek School
A—Elementary Schools
B—September 1972 Enrollment
C—Acreage of School Site
D—Minimum State Required Acreage
E—Pupils Per Actual Acre
E—Pupils Per Minimum Required Acre
Gt—Percent Overcrowded
Fig. 14
INDIANA
Counties, Standard Metropolitan Statistical Areas, and Selected Places
16-3
INDIANA
Urbanized A re as
“kankake
I Co.pTeNTON co"
CHICAGO-N.W. IND
16-44
INDIANA
Urbanized Areas
^AINOlAMSl
TERRE HAUTE
SOUTH BEND
16-48
In itials Date PUPIL SCHOOL STATISTICAL DATA FOR 8 COUNTIES, 1971-72
h o o l Unit
y S c h o o ls
1c S c h o o ls
5 t . o f D eca tu r Twp,
Lawrence Twp.
P erry Twp.
P ike Twp.
Warren Twp,
Washington Twp,
Wayne Twp,
eedway
ra. S c h o o l C orp .
y T o t a l
ts - Ham ilton Co.
S c h o o ls — Boone Co,
>irai.Sells, - Hancock Co.
:h .C o r p . - H en d r ick s Co
Corp . - H en d ricks Co.
:h .C o r p , - H en d ricks Co
100I C orp . - Johnson Co
h i . Corp . - Johnson Co,
Sch. C o rp . - Morgan Co,
U n its
y JiStaJl, x/r o-^
Irp c ,
_ SELECTED DATA OF BONDED INDEBTEDNESS OF
DEFENDANT SCHOOL CORPORATION AS OF JUNE 30 1972
1 9 7 1 - 7 2
A s s e s se d
V a lu a t io n
$ 933 , 91 5 , 9 2 0
21 ,299 , 5 2 0
35 , 2 3 3 , 6 5 0
73 , 6 4 8 , 7 9 0
108 , 3 3 0 , 1 8 0
60 , 22 4 , , 62 0
161 , , 87 3 , ,770
16 7 , , 63 7 , 260
1 5 0 , , 34 6 , 720
5 8 , 0 1 9 , 0 1 0
1 8 , 5 1 2 , 250
$ 1 , 7 8 9 , 0 4 1 , 690
5 5 3 , 8 9 7 , 5 4 0
1 3 , 4 3 0 , 5 9 0
3 1 . 7 8 1 , 7 4 0
. 2 3 , 4 8 9 , 6 5 5
1 4 , 7 9 4 , 7 0 0
. 2 5 , 1 9 3 , 7 2 0
. 3 0 , 0 8 2 , 5 2 0
. 2 5 , 7 0 6 , 8 0 0
. 1 8 , 0 1 2 . 2 7 0
$ 2 , 0 2 5 , 4 3 1 , 225
Bond R a t i n g s - - - _ _ Bonded Dehf _ _ _
Moody ’ s S&P
G e n e r a l
O b l i g a t i o n s
SBC
Debt
V et & Common
S c h l . F u n d Lo an s
T o t a l
Aa - $ 6 , 9 4 9 , 0 0 0 $ None $ None $ 6 , 9 4 9 , 0 0 0
B a a - l A — 1 , 7 3 5 , 0 0 0 7 6 , 1 7 5 1 , 8 1 1 , 1 7 5
A A 6 0 , 0 0 0 1 , 4 5 0 , 3 7 0 1 2 3 , 5 0 0 1 , 6 3 3 , 8 7 0
A A 9 9 0 , 0 0 0 5 , 7 7 6 , 3 3 3 9 7 , 5 0 0 6 , 8 6 3 , 8 3 3
Aa BBB 9 1 5 , 0 0 0 1 4 , 6 9 5 , 0 0 0 1 3 6 , 2 0 0 1 5 , 7 4 6 , 2 0 0
A BBB 1 0 , 0 0 0 4 , 0 8 0 , 0 0 0 — 4 , 0 9 0 , 0 0 0
Aa AA
A
2 , 0 1 5 , 0 0 0 4 , 9 6 5 , 0 0 0 -- . 6 , 9 8 0 , 0 0 0
Aa AA
A
2 , 8 3 5 , 0 0 0 1 2 , 6 3 3 , 0 0 0 __ 1 5 , 4 6 8 , 0 0 0
A AA 2 0 0 , 0 0 0 9 , 0 3 5 , 0 0 0 — 9 , 2 3 5 , 0 0 0
— BBB 2 2 , 0 0 0 2 , 5 3 5 , 0 0 0 2 , 5 5 7 , 0 0 0
Baa BBB 1 6 5 , 0 0 0 1 , 7 4 0 , 0 0 0 1 , 9 0 5 . 0 0 0
$ 1 4 , 1 6 1 , 0 0 0 $ 5 8 , 6 4 4 , 7 0 3 $ 4 3 3 , 3 7 5 $ 7 3 , 2 3 9 , 07 8
A
Baa
Baa
Baa
Baa
B a a- 1
Baa
A
BBB
BBB
BBB
BBB
BBB
BBB
$ 4 1 5 , 0 0 0
1 9 4 . 0 0 0
None
8 2 , 0 0 0
8 0 , 0 0 0
3 6 7 , 3 2 1
2 8 5 . 0 0 0
179 . 0 0 0
$ 6 , 2 4 8 , 0 0 0
1 . 5 6 5 . 0 0 0
4 , 3 7 5 , 6 8 5
5 , 4 8 5 , 0 0 0
3 . 7 5 0 . 0 0 0
2 , 5 3 9 , 0 0 0
1 . 8 3 5 . 0 0 0
4 , 6 0 0 , 5 1 7
3 , 7 0 2 . 3 2 3
$ 7 8 8 , 6 7 9
1 9 5 , 0 0 0
6 5 9 , 8 2 3
1 7 5 , 5 0 0
6 9 0 , 2 5 0
2 1 9 , 3 9 0
6 8 5 , 4 2 1
$ 7 , 4 5 1 , 6 7 9
1 . 9 5 4 . 0 0 0
5 , 0 3 5 , 5 0 8
5 . 5 6 7 . 0 0 0
4 , 0 0 5 , 5 0 0
3 , 2 2 9 , 2 5 0
2 , 2 0 2 , 3 2 1
5 , 1 0 4 , 9 0 7
4 , 5 6 6 , 7 4 4
$ 1 5 , 7 6 3 , 3 2 1 $ 9 3 , 7 4 5 , 2 2 8 $ 3 , 8 4 7 , 4 3 8 $ 1 1 2 , 3 5 5 , 9 8 7
T o t a l S c h o o l Unused Bondin|
Debt As a 2 * P owe r @12 . 5%
o f Net A s s e s s e d o f A s s e s s e d
0.74% $ 1 0 9 , 7 9 0 , 4 9 0
8 . 5 0 8 5 1 , 2 6 5
4 . 6 4 2 , 7 7 0 , 3 3 6
9 . 3 2 2 , 3 4 2 , 2 6 6
1 4 , 5 4 —
6 . 7 9 ' 3 , 4 3 8 , 0 7 8
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NOTH: Where it Is feasible, a syllabus (headnote) will be re
leased, as is being done in connection with this case/at the time
t5ee5plSlonr1l tSeS'ied' ? he syllabus constitutes no part i f the oninion of the Court but has been prepared by the Reporter of Decisions fo?
Co6 2ToTtFnsen3C210337 ^ ^ P” Wed S ta t e s v- s t r a i t L u m b er
SUPREME COURT OF THE UNITED STATES
Syllabus
MILL I KEN, GOVERNOR OF MICHIGAN, e t a l . v .
BRADLEY e t a l .
CERTIORARI TO TH E UNITED STATES COURT OP APPEALS FOR
TH E SIX TH CIRCUIT
No. 73-434. Argued February 27, 1974— Decided July 25, 1974s
Respondents brought this class action, alleging that the Detroit
public school system is racially segregated as a result of the official
policies and actions of petitioner state and city officials, and seek
ing implementation of a plan to eliminate the segregation and
establish a unitary nonracial school system. The District Court,
after concluding that various acts by the petitioner Detroit Board
of Education had created and perpetuated school segregation in
Detroit, and that the acts of the Board, as a subordinate entity
of the State, were attributable to the State, ordered the Board
to submit Detroit-only desegregation plans. The court also
ordered the state officials to submit desegregation plans encom
passing the three-county metropolitan area., despite the fact that
the 85 school districts in these three counties were not parties to
the action and there was no claim that they had committed
constitutional violations. Subsequently, the outlying school dis
tricts were allowed to intervene, but were not permitted to assert
any claim or defense on issues previously adjudicated or to reopen
any issue previously decided, but were allowed merely to advise
the court as to the propriety of a metropolitan plan and to submit
any objections, modifications, or alternatives to any such plan.
Thereafter, the District Court ruled that it was proper to consider
metropolitan plans, that a Detroit-only plan submitted by the
Board and respondents was inadequate to accomplish desegrega
tion, that therefore it would seek a solution beyond the limits of
^Together with No. 73-435, Allen Park Public Schools et al. v.
Bradley et al., and No. 73-436, Grosse Pointe Public School System
v. Bradley et al., also on certiorari to the same court.
I
MILLIKEN v. .BRADLEY
Syllabus
the Detroit school district and concluded that “ [s]chool district
lines are simply matters of political convenience and may not be
used to deny constitutional rights.” Without having evidence
that the suburban school districts had committed acts of de jure
segregation, the court appointed a panel to submit a plan for the
Detroit schools that would encompass an entire designated' deseg
regation area consisting of 53 of the 85 suburban school districts
plus Detroit, and ordered the Detroit Board to acquire at least
295 school buses to provide transportation under an interim plan
to be developed for the 1972-1973 school year. The Court of
Appeals, affirming in part, held that the record supported the
District Court’s finding as to the constitutional violations com
mitted by the Detroit Board and the state officials; that therefore
the District Court was authorized and required to take effective
measures to desegregate the Detroit school system; and that a
metropolitan area plan embracing the 53 outlying districts was
the only feasible solution and was within the District Court’s
equity powers. But the court remanded so that all suburban
school districts that might be affected by a metropolitan remedy
could be made parties and have an opportunity to be heard as
to the scope and implementation of such a remedy, and vacated
the order as to the bus acquisitions, subject to its reimposition
at an appropriate time. H eld: The relief ordered by the District
Court and affirmed by the Court of Appeals was, based upon
erroneous standards and was unsupported by record evidence that
acts of the outlying districts had any impact on the discrimination
found to exist in the Detroit schools. A federal court may not
impose a multi-district, areawide remedy for single-district de jure
school segregation violations, where there is no finding that the
other included school districts have failed to operate unitary school
systems or have committed acts that effected segregation within
the other districts, and there is no claim or finding that the school
district boundary lines were established with the purpose of foster
ing racial segregation, and where there is no meaningful opportunity
for the included neighboring school districts to present evidence
or be heard on the propriety of a multi-district remedy or on
the question of constitutional violations by those districts. Pp.
17-33.
(a) The District Court erred in using as a standard the declared
objective of development of a metropolitan area plan which, upon
implementation, would leave “ no school, grade, or classroom . . .
MILLIKEN v. BRADLEY i i i
Syllabus
substantially disproportionate to the overall pupil racial composi
tion” of the metropolitan area as a whole. The clear import of
Swann v. Board of Education, 402 U. S. 1, is that desegregation,
in the sense of dismantling a dual school system, does not require
any particular racial balance. Pp. 20-21.
(b) While boundary lines may be bridged in circumstances
where there has been a constitutional violation calling for inter
district relief, school district lines may not be casually ignored
or treated as a mere administrative convenience; substantial local
control of public education in this country is a deeply rooted
tradition. Pp. 21-22.
(c) The inter-district remedy could extensively disrupt and alter
the structure of public education in Michigan, since that remedy
would require, in effect, consolidation of 54 independent school
districts historically administered as separate governmental units
into a vast new super school district, and, since, entirely apart
from the logistical problems attending large-scale transportation
of students, the consolidation would generate other problems in
the administration, financing, and operation of this new school
system. Pp. 22-23.
(d) From the scope of the inter-district, plan itself, absent a
complete restructuring of the Michigan school district laws, the
District Court would become, first, a de facto “ legislative author
ity” to resolve the complex operational problems involved and
thereafter a “ school superintendent” for the entire area, a task
which few, if any, judges are qualified to perform and one which
would deprive the people of local control of schools through elected
school boards. P. 24.
(e) Before the boundaries of separate and autonomous school
districts may be set aside by consolidating the separate units for
remedial purposes or by imposing a cross-district remedy, it must
be first shown that there has been a constitutional violation within
one district that produces a significant segregative effect in another
district ; i. e., specifically, it must be shown that racially discrimi
natory acts of the state or local school districts, or of a single
school district have been a substantial cause of inter-district segre
gation. P. 25.
(f) With no showing of significant violation by the 53 outlying
school districts and no evidence of any inter-district violation or
effect, the District Court transcended the original theory of the
case as framed by the pleadings, and mandated a metropolitan
IV MILLIKEN v. BRADLEY
Syllabus
area remedy, the approval of which would impose on the outlying
districts, not shown to have committed any constitutional viola
tion, a standard not previously hinted at in any holding of this
Court. Pp. 25-26.
(g) Assuming, arguendo, that the State was derivatively respon
sible for Detroit’s segregated school conditions, it does not follow
that an inter-district remedy is constitutionally justified or re
quired, since there has been virtually no showing that either the
State or any of the 85 outlying districts engaged in any activity
that had a cross-district effect. Pp. 28-29.
(h) An isolated instance of a possible segregative effect as
between two of the school districts involved would not justify
the broad metropolitan-wide remedy contemplated, particularly
since that remedy embraced 52 districts having no responsibility
for the arrangement and potentially involved 503,000 pupils in
addition to Detroit’s 276,000 pupils. Pp. 29-30.
484 F. 2d 215, reversed and remanded.
B u r g e r , C. J., delivered the opinion of the Court, in which
S t e w a r t , B l a c k m u n , P o w e l l , and R e h n q u i s t , JJ., joined. S t e w
a r t , J., filed a concurring opinion. D o u g l a s , J., filed a dissenting
opinion. W h i t e , J., filed a dissenting opinion, in which D o u g l a s ,
B r e n n a n , and M a r s h a l l , JJ., joined. M a r s h a l l , J., filed a dis
senting opinion, in which D o u g l a s , B r e n n a n , and W h i t e , JJ.,
joined.
'iP 1] 8 0biuion is subject to formal revision before pnblicsticn in the preliminary print of the United States E e n n r t r S L ^ . . ,
tt” 6- ? 6̂ 1!0 !1101̂ the RePorter of Decisions, S^rem eCourt of the United States, Washington, D.C. 20543, of any ty^gSnhiral or other
formal errors in order that corrections may be before the m limmary print goes to press. ueiore tne pre-
SUPKEME COUET OF THE UNITED STATES
Nos. 73-434, 73-435, a n d 73-436
William G. Milliken, Gover
nor of Michigan, et al.,
Petitioners,
73-434 v.
Ronald Bradley and Richard
Bradley, by Their Mother
and Next Friend, Yerda
Bradley, et al.
Allen Park Public Schools
et al., Petitioners,
73-435 v.
Ronald Bradley and Richard
Bradley, by Their Mother
and Next Friend, Verda
Bradley, et al.
The Grosse Pointe Public
School System,
Petitioner,
73-436 v.
Ronald Bradley and Richard
Bradley, by Their Mother
and Next Friend, Verda
Bradley, et al.
On Writs of Certiorari to
the United States Court
of Appeals for the Sixth
Circuit.
[July 25, 1974]
Mb. C h i e f J u s t i c e B u r g e b d e l i v e r e d the o p i n i o n o f
the Court.
We granted certiorari in these consolidated cases to
determine whether a federal court may impose a multi-
2 MILLIKEN v. BRADLEY
district, areawide remedy to a single district de jure
segregation problem absent any finding that the other
included school districts have failed to operate unitary
school systems within their districts, absent any claim
or finding that the boundary lines of any affected school
district were established with the purpose of fostering
racial segregation in public schools, absent any finding
that the included districts committed acts which effected
segregation within the other districts, and absent a
meaningful opportunity for the included neighboring
school districts to present evidence or be heard on the
propriety of a multidistrict remedy or on the question
of constitutional violations by those neighboring districts.1
I
The action was commenced in August of 1970 by the
respondents, the Detroit Branch of the National Associa
tion for the Advancement of Colored People 1 2 and indi
vidual parents and students, on behalf of a class later
defined by order of the United States District Court,
ED Michigan, dated February 16, 1971, to include “all
school children of the City of Detroit and all Detroit
resident parents who have children of school age.” The
named defendants in the District Court included the
Governor of Michigan, the Attorney General, the State
Board of Education, the State Superintendent of Public
Instruction, and the Board of Education of the city of
Detroit, its members and its former superintendent of
schools. The State of Michigan as such is not a party
to this litigation and references to the State must be
read as references to the public officials, State and local,
1 Bradley v. Milliken, 484 F. 2d 215 (CA6 1973); cert, granted,
414 U. S. 1038 (Nov. 19, 1973).
2 The standing of the NAACP as a proper party plaintiff was not
contested in the trial court and is not an issue in this case.
through whom the State is alleged to have acted. In
their complaint respondents attacked the constitution
ality of a statute of the State of Michigan known as Act
48 of the 1970 Legislature on the ground that it put the
State of Michigan in the position of unconstitutionally
interfering with the execution and operation of a volun
tary plan of partial high school desegregation, known as
the April 7, 1970 Plan, which had been adopted by the
Detroit Board of Education to be effective beginning
with the fall 1970 semester. The complaint also alleged
that the Detroit Public School System was and is segre
gated on the basis of race as a result of the official policies
and actions of the defendants and their predecessors in
office, and called for the implementation of a plan that
would eliminate “the racial identity of every school in
the [DetroitJ system and . . . maintain now and here
after a unitary non-racial school system.”
Initially the matter was tried on respondents’ motion
for preliminary injunction to restrain the enforcement of
Act 48 so as to permit the April 7 Plan to be imple
mented. On that issue, the District Court ruled that
respondents were not entitled to a preliminary injunc
tion since at that stage there was no proof that Detroit
had a dual segregated school system. On appeal, the
Court of Appeals found that the “implementation of the
April 7 Plan was [unconstitutionally] thwarted by state
action in the form of the Act of the Legislature of
Michigan,” 43 F. 2d 897, 902 (CA6 1970), and that such
action could not be interposed to delay, obstruct, or
nullify steps lawfully taken for the purpose of protecting
rights guaranteed by the Fourteenth Amendment. The
case was remanded to the District Court for an expedited
trial on the merits.
On remand the respondents moved for immediate
implementation of the April 7 Plan in order to remedy
MILLIKEN v. BRADLEY 3
4 MILLIKEN v. BRADLEY
the deprivation of the claimed constitutional rights. In
response the School Board suggested two other plans,
along with the April 7 Plan, and urged that top priority
be assigned to the so-called “Magnet Plan” which was
“designed to attract children to a school because of its
superior curriculum.” The District Court approved the
Board’s Magnet Plan, and respondents again appealed to
the Court of Appeals moving for summary reversal.
The Court of Appeals refused to pass on the merits of
the Magnet Plan and ruled that the District Court had
not abused its discretion in refusing to adopt the April 7
Plan without an evidentiary hearing. The case was again
remanded with instructions to proceed immediately to a
trial on the merits of respondents’ substantive allegations
concerning the Detroit School System. 438 F. 2d 945
(CA6 1971).
The trial of the issue of segregation in the Detroit
school system began on April 6, 1971, and continued
through July 22, 1971, consuming some 41 trial days.
On September 27, 1971, the District Court issued its find
ings and conclusions on the issue of segregation finding
that “Government actions and inaction at all levels,
federal, state and local, have combined, with those of
private organizations, such as loaning institutions and
real estate associations and brokerage firms, to establish
and to maintain the pattern of residential segregation
throughout the Detroit metropolitan area.” Bradley v.
Milliken, 338 F. Supp. 582, 587 (ED Mich. 1971). While
still addressing a Detroit-only violation, the District
Court reasoned:
“While it would be unfair to charge the present de
fendants with what other governmental officers or
agencies have done, it can be said that the actions or
the failure to act by the responsible school authori
ties, both city and state, were linked to that of these
other governmental units. When we speak of gov
ernmental action we should not view the different
agencies as a collection of unrelated units. Perhaps
the most that can be said is that all of them, includ
ing the school authorities, are, in part, responsible
for the segregated condition which exists. And we
note that just as there is an interaction between
residential patterns and the racial composition of
the schools, so there is a corresponding effect on the
residential pattern by the racial composition of the
schools.” 338 F . Supp., at 587.
The District Court found that the Detroit Board of
Education created and maintained optional attendance
zones3 within Detroit neighborhoods undergoing racial
transition and between high school attendance areas of
opposite predominant racial compositions. These zones,
the court found, had the “natural, probable, foreseeable
and actual effect” of allowing White pupils to escape
identifiably Negro schools. 338 F. Supp., at 587. Simi
larly, the District Court found that Detroit school
attendance zones had been drawn along north-south
boundary lines despite the Detroit Board’s awareness
that drawing boundary lines in an east-west direction
would result in significantly greater desegregation.
Again, the District Court concluded, the natural and
actual effect of these acts was the creation and perpetu
ation of school segregation within Detroit.
The District Court found that in the operation of its
school transportation program, which was designed to
relieve overcrowding, the Detroit Board had admittedly
bused Negro Detroit pupils to predominantly Negro
3 Optional zones, sometimes referred to as dual zones or dual over
lapping zones, provide pupils living within certain areas a choice of
attendance at one of two high schools.
MILLIKEN v. BRADLEY 5
6 MILLIKEN v. BRADLEY
schools which were beyond or away from closer White
schools with available space.4 This practice was found
to have continued in recent years despite the Detroit
Board’s avowed policy, adopted in 1967, of utilizing trans
portation to increase desegregation:
“With one exception (necessitated by the burning of
a white school), defendant Board has never bused
white children to predominantly black schools. The
Board has not bused white pupils to black schools
despite the enormous amount of space available in
inner-city schools. There were 22,961 vacant seats
in schools 90% or more black.” 338 F. Supp., at 588.
With respect to the Detroit Board of Education’s prac
tices in school construction, the District Court found that
Detroit school construction generally tended to have seg
regative effect with the great majority of schools being
built in either overwhelmingly all Negro or all White
neighborhoods so that the new schools opened as pre
dominantly one race schools. Thus, of the 14 schools
which opened for use in 1970-1971, 11 opened over 90%
Negro and one opened less than 10% Negro.
The District Court also found that the State of Michi
gan had committed several constitutional violations with
respect to the exercise of its general responsibility for, and
supervision of, public education.5 The State, for ex
4 The Court of Appeals found record evidence that in at least one
instance during the period between 1957-1958, Detroit served a
suburban school district by contracting with it to educate its Negro
high school students by transporting them away from nearby sub
urban White high schools, and past Detroit high schools which were
predominnatly White, to all or predominantly Negro Detroit schools.
Bradley v. Milliken, 484 F. 2d 215, 231 (CA6 1973).
5 School districts in the State of Michigan are instrumentalities of
the State and subordinate to its State Board of Education and legis
MILLIKEN v. BRADLEY 7
ample, was found to have failed, until the 1971 Session of
the Michigan Legislature, to provide authorization or
funds for the transportation of pupils within Detroit
regardless of their poverty or distance from the school to
which they were assigned; during this same period
the State provided many neighboring, mostly White,
suburban districts the full range of state supported
transportation.
The District Court found that the State, through
Act 48, acted to “ impede, delay and minimize racial
integration in Detroit schools.” The first sentence of
§ 12 of Act 48 was designed to delay the April 7, 1970,
desegregation plan originally adopted by the Detroit
Board. The remainder of § 12 sought to prescribe for
each school in the eight districts criterion of “free choice”
and “neighborhood schools,” which, the District Court
found, “had as their purpose and effect the maintenance
of segregation.” 338 F. Supp., at 589.6
lature. The Constitution of the State of Michigan, Art. VIII, §2,
provides in relevant part:
“The legislature shall maintain and support a system of free public
elementary and secondary schools as defined by law.”
Similarly, the Michigan Supreme Court has stated that “The school
district is a state agency. Moreover, it is of legislative crea
tion Attorney General v, Loweey, 131 Mich. 639, 644, 92
N. W. 289, 290 (1902); “ Education in Michigan belongs to the State.
It is no part- of the local self-government inherent in the township
or municipality, except so far as the legislature may choose to make
it such. The Constitution has turned the whole subject over to the
legislature Attorney General v. Detroit Board oj Education,
154 Mich. 584, 590, 118 N. W. 606, 609 (1908).
6 “ Sec. 12. The implementation of any attendance provisions for
the 1970-71 school year determined by any first class school dis
trict board shall be delayed pending the date of commencement of
functions by the first class school district boards established under
the provisions of this amendatory act but such provision shall not
impair the right of any such board to determine and implement prior
8 MILLIKEN v. BRADLEY
The District Court also held that the acts of the Detroit
Board of Education, as a subordinate entity of the State,
were attributable to the State of Michigan thus creating a
vicarious liability on the part of the State. Under Michi
gan law, Mich. Stat. Ann. § 15, 1961, for example, school
building construction plans had to be approved by the
State Board of Education, and prior to 1962, the State
Board had specific statutory authority to supervise school
site selection. The proofs concerning the effect of De-
triot’s school construction program were, therefore, found
to be largely applicable to show State responsibility for
the segregative results.7
to such date such changes in attendance provisions as are mandated
by practical necessity. . . .” Act No. 48, Section 12, Public Acts of
Michigan, 1970; Michigan compiled Laws Section 388.182 (emphasis
added).
7 The District Court briefly alluded to the possibility that the
State, along with private persons, had caused, in part, the housing
patterns of the Detroit metropolitan area which, in turn, produced
the predominantly White and predominantly Negro neighborhoods
that characterize Detroit:
“ It is no answer to say that restricted practices grew gradually (as
the black population in the area increased between 1920 and 1970),
or that since 1948 racial restrictions on the ownership of real prop
erty have been removed. The policies pursued by both government
and private persons and agencies have a continuing and present effect
upon the complexion of the community— as we know, the choice of a
residence is a relatively infrequent affair. For many years FHA and
VA openly advised and advocated the maintenance of “ harmonious”
neighborhoods, i. e., racially and economically harmonious. The
conditions created continue.” 338 F. Supp., at 587.
Thus, the District Court concluded,
“ The affirmative obligation of the defendant Board has been and is
to adopt and implement pupil assignment practices and policies that
compensate for and avoid incorporation into the school system the
effects of residential racial segregation.” 338 F. Supp., at 593.
The Court of Appeals, however, expressly noted that:
“ In affirming the District Judge’s findings of constitutional violations
MILLIKEN v. BRADLEY 9
Turning to the question of an appropriate remedy for
these several constitutional violations, the District Court
deferred a pending motion 8 by intervening parent de
fendants to join as additional parties defendant some 85
school districts in the three counties surrounding Detroit
on the ground that effective relief could not be achieved
without their presence.9 The District Court concluded
that this motion to intervene was “premature,” since it
“has to do with relief” and no reasonably specific desegre
gation plan was before the court. 388 F. Supp., at 595.
Accordingly, the District Court proceeded to order the De
troit Board of Education to submit desegregation plans
limited to the segregation problems found to be existing
within the city of Detroit. At the same time, however,
the state defendants were directed to submit desegrega
tion plans encompassing the three-county metropolitan
by the Detroit Board of Education and by the State defendants re
sulting in segregated schools in Detroit, we have not relied at all
upon testimony pertaining to segregated housing except as school
construction programs helped cause or maintain such segregation.”
484 F. 2d, at 242.
Accordingly, in its present posture, the case does not present any
question concerning possible state housing violations.
8 On March 22, 1971, a group of Detroit residents, who were
parents of children enrolled in the Detroit public schools, were per
mitted to intervene as parties defendant. On June 24, 1971, the
District Judge alluded to the “ possibility” of a metropolitan school
system stating: “ As I have said to several witnesses in this case:
how do you desegregate a black city, or a black school system.” IV
App., at 259-260. Subsequently, on July 17, 1971, various parents
filed a motion to require to joinder of all of the 85 independent school
districts within the tri-county area.
9 The respondents, as plaintiffs below, opposed the motion to join
the additional school districts, arguing that the presence of the state
defendants was sufficient and all that was required, even if, in shap
ing a remedy, the affairs of these other districts was to be affected.
338 F. Supp., at 595.
10 MILLIKEN v. BRADLEY
area10 11 despite the fact that the school districts of these
three counties were not parties to the action and despite
the fact that there had been no claim that these outlying
counties, encompassing some 85 separate school districts,
had committed constitutional violations.11 An effort to
appeal these orders to the Court of Appeals was dismissed
on the ground that the orders were not appealable; 468
F. 2d 902, cert, denied, 409 U. S. 844. The sequence of
the ensuing actions and orders of the District Court are
significant factors and will therefore be catalogued in
some detail.
Following the District Court’s abrupt announcement
10 A t the time of the 1970 census, the population of Michigan was
8,875,083, almost half of which, 4,199,931, resided in the tri-county
area of Wayne, Oakland, and Macomb. Oakland and M acomb Coun
ties abut Wayne County to the north, and Oakland County abuts
M acomb County to the west. These counties cover 1,952 square
miles, Michigan Statistical Abstract, 1972 (9th ed.), and the area is
approximately the size of the State of Delaware (2,057 square miles),
more than half again the size of the State of Rhode Island (1,214
square miles) and almost 30 times the size of the District of Columbia
(67 square miles). Statistical Abstract of United States, 1972 (93d
ed.). The population of Wayne, Oakland, and M acomb Counties
was 2,666,751; 907,871 and 625,309; respectively in 1970. Detroit,
the State’s largest city, is located in Wayne County.
In the 1970-1971 school year, there were 2,157,449 children en
rolled in the school districts in Michigan. There are 86 independent,
legally distinct school districts within the tri-county area, having a
total enrollment of approximately 1,000,000 children. In 1970, the
Detroit Board of Education operated 319 schools with approximately
276,000 students.
11 In its formal opinion, subsequently announced, the District Court
candidly recognized that:
“ It should be noted that the court has taken no proofs with respect
to the establishment of the boundaries of the 86 public school dis
tricts in the counties of Wayne, Oakland and Macomb, nor on the
issue of whether, with the exclusion of the city of Detroit school
district, such school districts have committed acts of de jure segrega
tion.” 345 F. Supp. 914, 920.
MILLIKEN v. BRADLEY 11
that it planned to consider the implementation of a
multidistrict, metropolitan area remedy to the segrega
tion problems identified within the city of Detroit, the
District Court was again requested to grant the outlying
school districts intervention as of right on the ground
that the District Court’s new request for multidistrict
plans “may, as a practical matter, impair or impede [the
intervenor’s] ability to protect” the welfare of their stu
dents. The District Court took the motions to intervene
under advisement pending submission of the requested
desegregation plans by Detroit and the state officials.
On March 7, 1972, the District Court notified all parties
and the petitioner school districts seeking intervention,
that March 14, 1972, was the deadline for submission of
recommendations for conditions of intervention and the
date of the commencement of hearings on Detroit-only
desegregation plans. On the second day of the scheduled
hearings, March 15, 1972, the District Court granted the
motions of the intervenor school districts12 subject, inter
alia, to the following conditions:
“1. No intervenor will be permitted to assert any
claim or defense previously adjudicated by the court.
“2. No intervenor shall reopen any question or
issue which has previously been decided by the court.
“7. New intervenors are granted intervention for
two principal purposes: (a) To advise the court, by
brief, of the legal propriety or impropriety of con
sidering a metropolitan plan; (b) To review any
plan or plans for the desegregation of the so-called
larger Detroit Metropolitan area, and submitting
objections, modifications or alternatives to it or
12 According to the District Court, intervention was permitted un
der Rule 24 (a ), Fed. Rule Civ. Proc., “ Intervention of Right,” and
also under Rule 24 (b ), “ Permissive Intervention.”
12 MILLIKEN v. BRADLEY
them, and in accordance with the requirements of
the United States Constitution and the prior orders
of this court.” I App., at 206.
Upon granting the motion to intervene, on March 15,
1972, the District Court advised the petitioning inter-
venors that the court had previously set March 22, .1972,
as the date for the filing of briefs on the legal propriety
of a “metropolitan” plan of desegregation and, accord
ingly, that the intervening school districts would have
one week to muster their legal arguments on the issue.13
Thereafter, and following the completion of hearings on
the Detroit-only desegregation plans, the District Court
issued the four rulings that were the principal issues in
the Court of Appeals.
(a) On March 24, 1972, two days after the inter
veners’ briefs were due, the District Court issued its
ruling on the question of whether it could “consider relief
in the form of a metropolitan plan, encompassing not
only the city of Detroit, but the larger Detroit metro
politan area.” It rejected the state defendants’ argu
ments that no state action caused the segregation of
the Detroit schools, and the intervening suburban dis
tricts’ contention that inter-district relief was inappro
priate unless the suburban districts had themselves
committed violations. The court concluded:
“ [I]t is proper for the court to consider metro
politan plans directed toward the desegregation of
the Detroit public schools as an alternative to the
the present intra-city desegregation plans before it
and, in the event that the court finds such intra-city
13 This rather abbreviated briefing schedule was maintained despite
the fact that the District Court had deferred consideration of a
motion made eight months earlier, to bring the suburban districts
into the case. See n. 8, supra.
MILLIKEN v. BRADLEY 13
plans inadequate to desegregate such schools, the
court is of the opinion that it is required to consider
a metropolitan remedy for desegregation.” Pet.
App., at 51a.
(b) On March 28, 1972, the District Court issued its
findings and conclusions on the three “Detroit-only”
plans submitted by the city Board and the respondents.
It found that the best of the three plans “would make
the Detroit system more identifiably Black . . . thereby
increasing the flights of Whites from the city and the
system.” Pet. App., at 53a-55a. From this the court
concluded that the plan “would not accomplish desegre
gation within the corporate geographical limits of the
city.” Id., at 56a. Accordingly, the District Court held
that “it must look beyond the limits of the Detroit school
district for a solution to the problem,” and that “ [s]chool
district lines are simply matters of political convenience
and may not be used to deny constitutional rights.” Id.,
at 57a.
(c) During the period from March 28, 1972 to April 14,
1972, the District Court conducted hearings on a metro
politan plan. Counsel for the petitioning intervenors
was allowed to participate in these hearings, but he was
ordered to confine his argument to “the size and expanse
of the metropolitan plan” without addressing the inter
venors’ opposition to such a remedy or the claim that a
finding of a constitutional violation by the intervenor
districts was an essential predicate to any remedy involv
ing them. Thereafter, on June 14, 1972, the District
Court issued its ruling on the “desegregation area” and
related findings and conclusions. The court acknowl
edged at the outset that it had “taken no proofs with
respect to the establishment of the boundaries of the 86
public school districts in the counties [in the Detroit
14 MILLIKEN v. BRADLEY
area], nor on the issue of whether, with the exclusion of
the city of Detroit school district, such school districts
have committed acts of de jure segregation.” Neverthe
less, the court designated 53 of the 85 suburban school
districts plus Detroit as the “desegregation area” and
appointed a panel to prepare and submit “an effective
desegregation plan” for the Detroit schools that would
encompass the entire desegregation area.14 The plan
was to be based on 15 clusters, each containing part of
the Detroit system and two or more suburban districts,
and was to “achieve the greatest degree of actual deseg
regation to the end that, upon implementation, no school,
grade or classroom [would be] substantially dispropor
tionate to the overall pupil racial composition. Pet.
App. 101a-102a.
(d) On July 11 , 1972, and in accordance with a recom
mendation by the court-appointed desegregation panel,
the District Court ordered the Detroit Board of Educa
tion to purchase or lease “at least” 295 school buses for
the purpose of providing transportation under an interim
plan to be developed for the 1972-1973 school year. The
costs of this acquisition were to be borne by the state
defendants. Pet. App., at 106a-107a.
On June 12, 1973, a divided Court of Appeals, sitting
en banc, affirmed in part, vacated in part and remanded
for further proceedings. 484 F. 2d 215 (CA6 1973).15
14 The 53 school districts outside the city of Detroit that were in
cluded in the court’s “ desegregation area” have a combined student
population of approximately 503,000 students compared to Detroit’s
approximately 276,000 students. Nevertheless, the District Court
directed that the intervening districts should be represented by only
one member on the desegregation panel while the Detroit Board of
Education was granted three pane! members. Pet. App., at 99a.
15 The District Court had certified most of the foregoing rulings for
interlocutory review pursuant to 28 U. S. C. § 1292 (b ) (I App. 265-
266) and the case was initially decided on the merits by a panel of
MILLIKEN v. BRADLEY
15
T h e C ourt o f A ppeals held, first, that the record sup
ported the D istrict C ourt’s findings and conclusions on
the constitutional violations committed by the Detroit
Board, 4 8 4 F . 2d, at 2 2 1 -2 3 8 , and by the state defend
ants, 4 8 4 F . 2d, at 2 3 9 -2 4 1 .16 I t stated that the acts of
racial discrimination shown in the record are “causally
related to the substantial am ount of segregation found
in the D etro it school system ,” 484 F . 2d, at 241, and that
the D istrict Court was, therefore, authorized and
required to take effective measures to desegregate the
D etroit Public School System .” 484 F . 2d 242.
T h e C ourt of A ppeals also agreed with the District
Court th at “ any less comprehensive a solution than a
m etropolitan area plan would result in an all black school
system im m ediately surrounded by practically all white
suburban school system s, with an overwhelming white
m ajority population in the total metropolitan area.” 484
F . 2d, at 245 . T h e court went on to state that it could
“not see how such segregation can be any less harmful
three judges. However, the panel’s opinion and judgment were
vacated when it was determined, to rehear the case en banc 484 F 2d
215, 218 (CA6 1973).
18 With respect to the State’s violations, the Court of Appeals
held: (1) that, since the city Board is an instrumentality of the
State and subordinate to the State Board, the segregative actions of
the Detroit Board “ are the actions of an agency of the State” (484
F. 2d, at 238); (2) that the state legislation rescinding Detroit’s
voluntary desegregation plan contributed to increasing segregation
in the Detroit schools ( Id . ) ; (3) that under state law prior to 1962
the state Board had authority over school construction plans and
must therefore be held responsible “ for the segregative results” (Id. ) ;
(4) that the “ State statutory scheme of support of transportation
for school children directly discriminated against Detroit” (484 F. 2d,
at 240) by not providing transportation funds to Detroit on the same
basis as funds were provided to suburban districts (484 F. 2d, at
238); and (5) that the transportation o f Negro students from one
suburban district to a Negro school in Detroit must have had the
approval, tacit or express, of the State Board of Education.” (Id.)
16 MILLIKEN v. BRADLEY
to the minority students than if the same result were
accomplished within one school district.” 484 F. 2d, 245.
Accordingly, the Court of Appeals concluded that “ the
only feasible desegregation plan involves the crossing of
the boundary lines between the Detroit School District
and adjacent or nearby school districts for the limited
purpose of providing an effective desegregation plan.”
484 F. 2d, at 249. It reasoned that such a plan would
be appropriate because of the State’s violations, and
could be implemented because of the State’s authority
to control local school districts. Without further elabo
ration, and without any discussion of the claims that no
constitutional violation by the outlying districts had been
shown and that no evidence on that point had been
allowed, the Court of Appeals held:
“ [T]he State has committed de jure acts of segrega
tion and . . . the State controls the instrumentalities
whose action is necessary to remedy the harmful
effects of the State acts.” Ibid.
An inter-district remedy was thus held to be “within the
equity powers of the District Court.” 484 F. 2d, at 250.17
The Court of Appeals expressed no views on the pro
priety of the District Court’s composition of the metro
politan “desegregation area.” It held that all suburban
school districts that might be affected by any metropol
itanwide remedy should, under Rule 19, Fed. Rule Civ.
Proc., be made parties to the case on remand and be
given an opportunity to be heard with respect to the
17 The court sought to distinguish Bradley v. School Board of the
City of Richmond, Virginia, 462 F. 2d 1058 (C A 4), affirmed by an
equally divided Court, 412 U. S. 92, on the grounds that the District
Court in that case had ordered an actual consolidation of three school
districts and that Virginia’s constitution and statutes, unlike Michi
gan’s, did not give the local boards exclusive power to operate the
public schools. 484 F. 2d, at 251.
MILLIKEN v. BRADLEY 17
scope and implementation of such a remedy. 484 F. 2d,
at 251-252. Under the terms of the remand, however,
the District Court was not required” to receive further
evidence on the issue of segregation in the Detroit schools
or on the propriety of a Detroit-only remedy, or on the
question of whether the affected districts had committed
any violation of the constitutional rights of Detroit
pupils or others. 484 F. 2d, at 252. Finally, the Court
of Appeals vacated the District Court’s order directing
the acquisition of school buses, subject to the right of
the District Court to consider reimposing the order “at
the appropriate time.” 484 F. 2d 252.
II
Ever since Brown v. Board of Education, 347 U. S.
483 (1954), judicial consideration of school desegregation
cases has begun with the standard that:
“ [I]n the field of public education the doctrine of
'separate but equal’ has no place. Separate educa
tional facilities are inherently unequal.” 347 U. S.,
at 495.
This has been reaffirmed time and again as the meaning
of the Constitution and the controlling rule of law.
The target of the Brown holding was clear and forth
right: the elimination of state mandated or deliberately
maintained dual school systems with certain schools for
Negro pupils and others for White pupils. This duality
and racial segregation was held to violate the Constitu
tion in the cases subsequent to 1954, including particu
larly Green v. County School Board of New Kent County,
391 U. S. 430 (1968); Raney v. Board of Education, 391
U. S. 443 (1968); Monroe v. Board of Commissioners,
391 U. S. 450 (1968); Swann v. Charlotte-Mecklenburg
Board of Education, 402 U. S. 1 (1971); Wright v. Coun
cil of City of Emporia, 407 U. S. 451 (1972); United
18 MILLIKEN v. BRADLEY
States v. Scotland Neck Board of Education, 407 U. S.
484.
The Swann case, of course, dealt
“with the problem of defining in more precise terms
than heretofore the scope of the duty of school au
thorities and district courts in implementing Brown I
and the mandate to eliminate dual systems and
establish unitary systems at once.” 402 U. S., at 6.
In Brown v. Board of Education, 349 U. S. 294 (1955)
{Brown II), the Court’s first encounter with the problem
of remedies in school desegregation cases, the Court noted
that:
“In fashioning and effectuating the decrees the
courts will be guided by equitable principles. Tra
ditionally, equity has been characterized by a practi
cal flexibility in shaping its remedies and by a facility
for adjusting and reconciling public and private
needs.” Brown v. Board of Education, 349 U. S. 294,
299-300 (1955).
In further refining the remedial process, Swann held, the
task is to correct, by a balancing of the individual and
collective interests, “ the condition that offends the Con
stitution.” A federal remedial power may be exercised
“only on the basis of a constitutional violation” and, “ [a]s
with any equity case, the nature of the violation deter
mines the scope of the remedy.” 402 U. S., at 15, 16.
Proceeding from these basic principles, we first note
that in the District Court the complainants sought a
remedy aimed at the condition alleged to offend the
Constitution—the segregation within the Detroit City
school district.18 The court acted on this theory of the
18 Although the list of issues presented for review in petitioners’
briefs and petitions for writs of certiorari do not include arguments
on the findings of segregatory violations on the part of the Detroit
defendants, two of the petitioners argue in brief that these findings
MILLIKEN v. BRADLEY 19
case and in its initial ruling on the “Desegregation Area’'
stated:
“The task before this court, therefore, is now, and .. .
has always been, how to desegregate the Detroit
public schools.” Pet. App., at 61a.
Thereafter, however, the District Court abruptly rejected
the proposed Detroit-only plans on the ground that “while
it would provide a racial mix more in keeping with the
Black-White proportions of the student population, [it]
would accentuate the racial identifiability of the [Detroit]
district as a Black school system, and would not accom
plish desegregation.” Pet. App., at 56a. “ [T]he racial
composition of the student body is such,” said the court,
“that the plan’s implementation would clearly make the
entire Detroit public school system racially identifiable”
(Pet. App., at 54a), “leaving] many of its schools 75 to
90 percent Black.” Pet. App., at 55a. Consequently,
the court reasoned, it was imperative to “look beyond the
limits of the Detroit school district for a solution to the
problem of segregation in the Detroit schools . . .” since
“school district lines are simply matters of political con
venience and may not be used to deny constitutional
rights.” Id., at 57a. Accordingly, the District Court
proceeded to redefine the relevant area to include areas
of predominantly White pupil population in order to en
sure that “ upon implementation, no school, grade or class
room [would be] substantially disproportionate to the
overall racial composition” of the entire metropolitan
area.
While specifically acknowledging that the District
Court’s findings of a condition of segregation were limited
constitute error. Supreme Court Rules 23 (1) (c) and 40 (1) (d )(2 ),
at a minimum, limit our review of the Detroit violation findings to
plain error,” and, under our decision last Term in Keyes v. School
District N o. 1, Denver, Colorado, 413 U. S. 189, the findings appear
to be correct.
20 MILLIKEN v. BRADLEY
to Detroit, the Court of Appeals approved the use of a
metropolitan remedy largely on the grounds that it is:
“ impossible to declare ‘clearly erroneous’ the Dis
trict Judge’s conclusion that any Detroit only segre
gation plan will lead directly to a single segregated
Detroit school district overwhelmingly black in all
of its schools, surrounded by a ring of suburbs and
suburban school districts overwhelmingly white in
composition in a state in which the racial composi
tion is 87 percent white and 13 percent black.” 484
F. 2d, at 249.
Viewing the record as a whole, it seems clear that the
District Court and the Court of Appeals shifted the pri
mary focus from a Detroit remedy to the metropolitan
area only because of their conclusion that total desegre
gation of Detroit would not produce the racial balance
which they perceived as desirable. Both courts pro
ceeded on an assumption that the Detroit schools could
not be truly desegregated—in their view of what consti
tuted desegregation—unless the racial composition of
the student body of each school substantially reflected
the racial composition of the population of the metro
politan area as a whole. The metropolitan area was
then defined as Detroit plus 53 of the outlying school
districts. That this was the approach the District Court
expressly and frankly employed is shown by the order
which expressed the court’s view of the constitutional
standard:
“Within the limitations of reasonable travel time
and distance factors, pupil reassignments shall be
effected within the clusters described in Exhibit
P. M. 12 so as to achieve the greatest degree of actual
desegregation to the end that, upon implementation,
no school, grade or classroom [will be] substantially
MILLIKEN v. BRADLEY 21
disproportionate to the overall pupil racial composi
tion.” Petn. App,, at 101a-102a (emphasis added).
In Swann, which arose in the context of a single independ
ent school district, the Court held:
“If we were to read the holding of the District Court
to require as a matter of substantive constitutional
right, any particular degree of racial balance or
mixing, that approach would be disapproved and we
would be obliged to reverse.” 402 U. S., at 24.
The clear import of this language from Swann is that
desegregation, in the sense of dismantling a dual school
system, does not require any particular racial balance in
each “ school, grade or classroom.” 19 See Spencer v.
Kugler, 404 U. S. 1027 (1972).
Here the District Court’s approach to what consti
tuted “actual desegregation” raises the fundamental ques
tion, not presented in Swann, as to the circumstances in
which a federal court may order desegregation relief that
embraces more than a single school district. The court’s
analytical starting point was its conclusion that school
19 Disparity in the racial composition of pupils within a single
district may well constitute a “signal” to a district court at the
outset, leading to inquiry into the causes accounting for a pro
nounced racial identifiability of schools within one school system.
In Swann, for example, we were dealing with a large but single, inde
pendent school system and a unanimous Court noted: “Where the
proposed plan for conversion from a dual to a unitary system con
templates the continued existence of some schools that are all or
predominantly of one race [the school authority has] the burden
of showing that such school assignments are genuinely nondiscrim-
inatory.” Id.., p. 26. See also Keyes, supra, 413 U. S., at 208.
However, the use o f significant racial imbalance in schools within
an autonomous school district as a signal which operates simply to
shift the burden of proof, is a very different matter from equating
racial imbalance with a constitutional violation calling for a remedy.
Keyes, supra, also involved a remedial order within a single autono
mous school district.
22 MILLIKEN v. BRADLEY
district lines are no more than arbitrary lines on a map
“drawn for political convenience.” Boundary lines may
be bridged where there has been a constitutional violation
calling for inter-district relief, but, the notion that school
district lines may be casually ignored or treated as a mere
administrative convenience is contrary to the history of
public education in our country. No single tradition in
public education is more deeply rooted than local control
over the operation of schools; local autonomy has long
been thought essential both to the maintenance of com
munity concern and support for public schools and to
quality of the educational process. See Wright v. Coun
cil of the City of Emporia, 407 U. S. 451, 469. Thus, in
San Antonio School District v. Rodriguez, 411 U. S. 1, 50,
we observed that local control over the educational process
affords citizens an opportunity to participate in decision
making, permits the structuring of school programs to fit
local needs, and encourages “experimentation, innovation
and a healthy competition for educational excellence.”
The Michigan educational structure involved in this
case, in common with most States, provides for a large
measure of local control20 and a review of the scope and
20 Under the Michigan School Code of 1955, the local school dis
trict is an autonomous political body corporate, operating through a
Board of Education popularly elected. Mich. Comp. Laws Ann.
§§ 340.27, 340.55, 340.107, 340.148-9, 340.188. As such, the day-to-
day affairs of the school district are determined at the local level in
accordance with the plenary power to acquire real and personal
property, Mich. Comp. Laws Ann. (M C LA ) §§340.26; 340.77; 340.-
113; 340.165; 340.192; 340.352; to hire and contract with personnel,
M CLA § 340.569; § 340.574; to levy taxes for operations, MCLA
§ 340.563; to borrow against receipts, M CLA § 340.567; to de
termine the length of school terms, M CLA §340.575; to control
the admission of nonresident students, M CLA § 340.582; to deter
mine courses of study, M CLA § 340.583; to provide a kindergarten
program, M CLA §340.584; to establish and operate vocational
schools, M CLA § 340.585; to offer adult education programs, MCLA
MILLIKEN v. BRADLEY 23
character of these local powers indicates the extent to
which the inter-district remedy approved by the two
courts could disrupt and alter the structure of public edu
cation in Michigan. The metropolitan remedy would re
quire, in effect, consolidation of 54 independent school
districts historically administered as separate units into a
vast new super school district. See n. 10, supra. Entirely
apart from the logistical and other serious problems at
tending large-scale transportation of students, the con
solidation would give rise to an array of other problems
in financing and operating this new school system. Some
of the more obvious questions would be: What would be
the status and authority of the present popularly elected
school boards? Would the children of Detroit be within
the jurisdiction and operating control of a school board
elected by the parents and residents of other districts?
What board or boards would levy taxes for school opera
tions in these 54 districts constituting the consolidated
metropolitan area? What provisions could be made for
assuring substantial equality in tax levies among the 54
districts, if this were deemed requisite? What provisions
would be made for financing? Would the validity of
long-term bonds be jeopardized unless approved by all of
the component districts as well as the State? What body
would determine that portion of the curricula now left to
the discretion of local school boards? Who would estab-
§340.586; to establish attendance areas, MCLA §340.589; to ar
range for transportation of nonresident students, MCLA § 340.591;
to acquire transportation equipment, M CLA § 340.594; to receive
gifts and bequests for educational purposes, MCLA § 340.605; to
employ an attorney, M CLA § 340.609; to suspend or expel students,
MCLA §340.613; to make rules and regulations for the operation
of schools, M CLA § 340.614; to cause to be levied authorized millage,
MCLA § 340.643a; to acquire property by eminent domain, MCLA
§340.711 et seq .; and to approve and select textbooks, MCLA
§ 340.882.
2 4 MILLIKEN v. BRADLEY
]ish attendance zones, purchase school equipment, locate
and construct new schools, and indeed attend to all the
myriad day-to-day decisions that are necessary to school
operations affecting potentially more than three quarters
of a million pupils? See n. 10, supra.
It may be suggested that all of these vital operational
problems are yet to be resolved by the District Court,
and that this is the purpose of the Court of Appeals’
proposed remand. But it is obvious from the scope of
the inter-district remedy itself that absent a complete re
structuring of the laws of Michigan relating to school dis
tricts the District Court will become first, a de facto
“legislative authority” to resolve these complex ques
tions, and then the “school superintendent” for the entire
area. This is a task which few, if any, judges are quali
fied to perform and one which would deprive the people
of control of schools through their elected representatives.
Of course, no state law is above the Constitution.
School district lines and the present laws with respect
to local control, are not sacrosanct and if they conflict
with the Fourteenth Amendment federal courts have a
duty to prescribe appropriate remedies. See, e. g., Wright
v. Council of City of Emporia, 407 U. S. 451; United
States v. Scotland Neck Board of Education, 407 U. S.
484 (state or local officials prevented from carving out a
new school district from an existing district that was in
process of dismantling a dual school system); cf. Haney
v. County Board of Education of Sevier County, 429 F. 2d
364 (CA8 1969) (State contributed to separation of races
by drawing of school district lines); United States v.
Texas, 321 F. Supp. 1043 (ED Tex. 1970), aff’d, 447
F. 2d 441 (CA5 1971), cert, denied, sub nom. Edgar v,
United States, 404 U. S. 1016 (one or more school dis
tricts created and maintained for one race). But our prior
holdings have been confined to violations and remedies
within a single school district. We therefore turn to
MILLIKEN v. BRADLEY 25
address, for the first time, the validity of a remedy man
dating cross-district or inter-district consolidation to
remedy a condition of segregation found to exist in only
one district.
The controlling principle consistently expounded in
our holdings is that the scope of the remedy is deter
mined by the nature and extent of the constitutional vio
lation. Swann, supra, at 16. Before the boundaries of
separate and autonomous school districts may be set
aside by consolidating the separate units for remedial
purposes or by imposing a cross-district remedy, it must
first be shown that there has been a constitutional viola
tion within one district that produces a significant seg
regative effect in another district. Specifically it must be
shown that racially discriminatory acts of the state or
local school districts, or of a single school district have
been a substantial cause of inter-district segregation.
Thus an inter-district remedy might be in order where
the racially discriminatory acts of one or more school dis
tricts caused racial segregation in an adjacent district, or
where district lines have been deliberately drawn on the
basis of race. In such circumstances an inter-district
remedy would be appropriate to eliminate the inter-dis
trict segregation directly caused by the constitutional vio
lation. Conversely, without an inter-district violation
and inter-district effect, there is no constitutional wrong
calling for an inter-district remedy.
The record before us, voluminous as it is, contains
evidence of de jure segregated conditions only in the De
troit schools; indeed, that was the theory on which the
litigation w'as initially based and on which the District
Court took evidence. See pp. 18-19, supra. With no
showing of significant violation by the 53 outlying school
districts and no evidence of any inter-district violation or
effect, the court went beyond the original theory of the
case as framed by the pleadings and mandated a metro
26 MILLIKEN v. BRADLEY
politan area remedy. To approve the remedy ordered by
the court would impose on the outlying districts, not
shown to have committed any constitutional violation, a
wholly impermissible remedy based on a standard not
hinted at in Brown 1 and II or any holding of this Court.
In dissent M r. J u s t i c e W h i t e and M r. J u s t i c e M a r
s h a l l undertake to demonstrate that agencies having
statewide authority participated in maintaining the dual
school system found to exist in Detroit. They are ap
parently of the view that once such participation is
shown, the District Court should have a relatively free
hand to reconstruct school districts outside of Detroit in
fashioning relief. Our assumption, arguendo, see post,
p . ---- , that state agencies did participate in the mainte
nance of the Detroit system, should make it clear that
it is not on this point that we part company.21 The dif
ference between us arises instead from established doc
trine laid down by our cases. Brown, supra, Green,
supra, Swann, supra, Scotland Neck, supra, and Emporia,
supra, each addressed the issue of constitutional wrong
in terms of an established geographic and administrative
school system populated by both Negro and White
children. In such a context, terms such as “unitary”
and “dual” systems, and “racially identifiable schools,”
have meaning, and the necessary federal authority to
remedy the constitutional wrong is firmly established.
But the remedy is necessarily designed, as all remedies
21 Since the Court has held that a resident of a school district
has a fundamental right protected by the Federal Constitution to
vote in a district election, it would seem incongruous to disparage
the importance of the school district in a different context. Kramer
v. Union Free School District No. IS, 395 U. S. 621, 626. While
the district there involved was located in New York, none of the
facts in our possession suggest that the relation of school districts
to the State is significantly different in New Y ork than it is in
Michigan.
MILLIKEN v. BRADLEY 27
are, to restore the victims of discriminatory conduct to
the position they would have occupied in the absence
of such conduct. Disparate treatment of White and
Negro students occurred within the Detorit school sys
tem, and not elsewhere, and on this record the remedy
must be limited to that system. Swann, supra, at 16.
The constitutional right of the Negro respondents re
siding in Detroit is to attend a unitary school system in
that district. Unless petitioners drew the district lines
in a discriminatory fashion, or arranged for White stu
dents residing in the Detroit district to attend schools in
Oakland and Macomb Counties, they were under no con
stitutional duty to make provisions for Negro students
to do so. The view of the dissenters, that the existence
of a dual system in Detroit can be made the basis for a
decree requiring cross-district transportation of pupils
cannot be supported on the grounds that it represents
merely the devising of a suitably flexible remedy for the
violation of rights already established by our prior de
cisions. It can be supported only by drastic expansion
of the constitutional right itself, an expansion without
any support in either constitutional principle or
precedent.22
22 The suggestion in the dissent of M r . J u s t i c e M a r s h a l l that
schools which have a majority of Negro students are not “ desegre
gated,” whatever the racial makeup of the school district’s popula
tion and however neutrally the district lines have been drawn and
administered, finds no support in our prior cases. In Green v.
County School Board of New Kent County, 391 U. S. 403 (1968),
for example, this Court approved a desegregation plan which would
have resulted in each of the schools within the district having a
racial composition of 57% Negro and 43% White. In Wright v.
Council of the City of Emporia, 407 U. S. 451 (1972), the optimal
desegregation plan wrnuld have resulted in the schools being 66%
Negro and 34% 'White, substantially the same percentages as could
be obtained under one of the plans involved in this case. And in
linited States v. Scotland Neck Board of Education, 407 U. S. 484,
28 MILLIKEN v. BRADLEY
I I I
W e recognize th at the six -volu m e record presently un
der consideration contains language and som e specific
incidental findings th ou ght b y the D istrict C ourt to afford
a basis for inter-district relief. H ow ever, these com para
tively isolated findings and brief com m ents concern only
one possible inter-district violation and are found in the
context o f a proceeding that, as the D istrict C ourt con
ceded, included no proofs of segregation practiced b y any
of the 85 suburban school districts surrounding Detroit.
T h e C ou rt o f A p p eals, for exam ple, relied on five factors
which, it held, am ounted to unconstitutional state action
with respect to th e violations found in the Detroit
system :
(1 ) I t held th e State derivatively responsible for the
D etro it B oard ’s violations on the theory th at actions of
D etro it as a political subdivision o f the State were attrib
utable to the State. A ccepting, arguendo, the correctness
of this finding of State responsibility for the segregated
conditions w ithin the city o f D etroit, it does n ot follow
th at an inter-district rem edy is constitutionally justified
or required. W ith a single exception, discussed later,
there has been no show ing th at either the State or any
o f the 85 outlying districts engaged in activ ity th at had
491, n. 5 (1972), a desegregation plan was implicitly approved for
a school district which had a racial composition of 77% Negro and
22% White. In none of these cases was it even intimated that
“ actual desegregation” could not be accomplished as long as the
number of Negro students was greater than the number of White
students.
The dissents also seem to attach importance to the metropolitan
character of Detroit and neighboring school districts. But the
constitutional principles applicable in school desegregation cases can
not vary in accordance with the size or population dispersal of the
particular city, county, or school district as compared with neighbor
ing areas.
MILLIKEN v. BRADLEY 29
a cross-district effect. T he boundaries of the Detroit
School D istrict, which are coterminous with the bound
aries o f the city of D etroit, were established over a cen
tury ago b y neutral legislation when the city was
incorporated; there is no evidence in the record, nor is
there any suggestion b y the respondents, that either the
original boundaries of the D etroit School District, or any
other school district in M ichigan, were established for the
purpose of creating, m aintaining or perpetuating segrega
tion of races. There is no claim and there is no evidence
hinting th at petitioners and their predecessors, or the 40-
odd other school districts in the tricounty area— but
outside the D istrict Court’s “ desegregation area”— have
ever m aintained or operated anything but unitary school
system s. U n itary school systems have been required for
more than a century by the M ichigan Constitution as
im plem ented by state law .23 W here the schools of only
one district have been affected, there is no constitutional
power in the courts to decree relief balancing the racial
com position of th at district’s schools with those of the
surrounding districts.
(2 ) T here was evidence introduced at trial that, dur
ing the late 1950 ’s, Carver School District, a predomi
nantly N egro suburban district, contracted to have Negro
high school students sent to a predominantly Negro
23 Ex rel. Workman, 18 Mich. 400 (1869), Act 34, §28 of Mich.
Pub. Acts of 1867. The Michigan Constitution and laws provide
that “ Every school district shall provide for the education of its
pupils without discrimination as to religion, creed, race, color or
national origin,” Mich. Const. 1963, Art. 8, §2 ; that “No separate
school or department shall be kept for any person or persons on
account of race or color,” Mich. Comp. laws Ann., § 340.355 ;
and that “All persons, residents of a school district . . . shall have
an equal right to attend school therein,” Mich. Comp. Laws Ann.,
§ 349.356. See also Act 319, Part II, c. 2, § 9, Mich. Pub. Acts of
1927.
30 MILLIKEN v. BRADLEY
school in D etroit. A t the tim e, Carver was an independ
ent school district th at had no high school because,
according to the trial evidence, “ Carver D istrict . . . did
not have a place for adequate high school facilities.”
P et. A p p ., at 138a. Accordingly, arrangem ents were
m ade w ith N orthern H igh School in the abutting D etroit
School D istrict so th at the Carver high school students
could obtain a secondary school education. In 1960 the
Oak Park School D istrict, a predom inantly W h ite subur
ban district, annexed the predom inantly N egro Carver
School D istrict, through the initiative of local officials.
Ibid. T here is, of course, no claim th at th e 1960 annex
ation had segregatory purpose or result or th at Oak Park
now m aintains a dual system .
According to the C ourt o f A ppeals, the arrangement
during the late 1950 ’s which allow ed Carver students to
be educated w ithin the D etro it D istrict was dependent
upon the “ tacit or express” approval of the State Board
of E ducation and was the result o f the refusal of the
W h ite suburban districts to accept the Carver students.
A lthou gh there is nothing in th e record supporting the
C ourt o f A p p eal’s supposition th at suburban W hite
schools refused to accept the Carver students, it appears
th at this situation, w hether with or w ithout the State’s
consent, m a y h ave had a segregatory effect on the school
populations o f the tw o districts involved. However,
since “ the nature o f the violation determ ines the scope
o f the rem edy,” 402 U . S., a t 15-16, this isolated instance
affecting tw o o f the school districts would n ot ju stify the
broad m etropolitan-w ide rem edy contem plated b y the
D istrict C ourt and approved b y the C ourt o f Appeals,
particularly since it em braced potentially 52 districts hav
ing no responsibility for the arrangem ent and involved
503 ,000 pupils in addition to D e tro it ’s 2 7 6 ,000 students.
(3 ) T h e C ou rt o f A p p eals cited the enactm ent o f state
legislation (A c t 4 8 ) which had the effect of rescinding
Detroit; s voluntary desegregation plan (the April
7 P la n ). T h a t plan, however, affected only 12 of 21
D etroit high schools and had no causal connection with
the distribution of pupils by race between Detroit and
the other school districts within the tri-county area.
(4 ) T h e court relied on the State’s authority to super
vise school site selection and to approve building con
struction as a basis for holding the State responsible for
t e segregative results of the school construction program
in D etroit. Specifically, the Court of Appeals asserted
that during the period between 1949 and 1962 the State
Board o f education exercised general authority as over
seer o f site acquisitions by local boards for new school
construction, and suggested that this State approved
school construction “ fostered segregation throughout the
D etroit M etropolitan area.” Pet. App., at 157a. This
brief com m ent, however, is not supported by the !evi-
dence taken at trial since that evidence was specifically
lim ited to proof th at school site acquisition and school
construction w ithin the city of Detroit produced de jure
segregation within the city itself. Pet. App., at 144a-
151a. T hu s, there was no evidence suggesting that the
State s activities with respect to either school construc
tion or site acquisition within Detroit affected the racial
com position o f the school population outside Detroit or,
conversely, that the State ’s school construction and site
acquisition activities within the outlying districts affected
the racial com position of the schools within Detroit.
(5 ) T h e C ourt of Appeals also relied upon the District
Court’s finding th at:
“ T h is and other financial limitations, such as those
on bonding and the working of the state aid formula
w hereby suburban districts were able to make far
larger per pupil expenditures despite less tax effect,
MILLIKEN v. BRADLEY 31
32 MILLIKEN v. BRADLEY
have created and perpetuated system atic educational
inequalities.” P et. A p p ., at 152a.
H ow ever, neither the C ourt of A p p eals nor the D istrict
Court offered any indication in the record or in their
opinions as to how , if at all, the availability of state
financed aid for som e M ich igan students outside D etroit
b u t not w ithin D etroit, m ight have affected the racial
character o f any of the S tate ’s school districts. F urther
m ore, as the respondents recognize, the application of our
recent ruling in San Antonio Independent School Dis
trict v. Rodriguez, 411 U . S. 1, to this state education
financing system is questionable, and this issue was not
addressed b y either the C ourt of A p p eals or the D is
trict Court. T his, again, underscores th e crucial fact
th at the theory upon which the case proceeded related
solely to the establishm ent of D etro it city violations as a
basis for desegregating D etroit schools and th at, at the
tim e of trial, neither the parties nor the trial judge were
concerned with a foundation for inter-district relief.24
I V
Petitioners have urged th at th ey were denied due proc
ess b y the m anner in which the D istrict Court lim ited
their participation after intervention was allowed thus
precluding adequate opportunity to present evidence that
they had com m itted no acts having a segregative effect in
D etroit. In light of our holding th at absent an inter-dis
trict violation there is no basis for an inter-district rem
edy, we need n ot reach these claim s. I t is clear, however,
th at the D istrict Court, with the approval o f the Court
of A p p eals, has provided an inter-district rem edy in the
24 Apparently, when the District Court, sua sponte, abruptly al
tered the theory of the case to include the possibility of multidistrict
relief, neither the plaintiffs nor the trial judge considered amending
the complaint to embrace the new theory.
MILLIKEN v. BRADLEY 33
face of a record which shows no constitutional violations
th at w ould call for equitable relief except within the
city of D etroit. In these circumstances there was no
occasion for the parties to address, or for the District
Court to consider whether there were racially discrim
in atory acts for which any of the 53 outlying districts
were responsible and which had direct and significant
segregative effect on schools of more than one district.
W e conclude that the relief ordered by the District
C ou rt and affirmed by the Court of Appeals was based
upon an erroneous standard and was unsupported by
record evidence that acts of the outlying districts affected
the discrim ination found to exist in the schools, of D e
troit. Accordingly, the judgm ent of the Court of A p
peals is reversed and the case is remanded for further pro
ceedings consistent with this opinion leading to prompt
form ulation of a decree directed to eliminating the
segregation found to exist in Detroit city schools, a rem
edy which has been delayed since 1970.
Reversed and remanded.
SUPREME COURT OF THE UNITED STATES
Nos. 73-434, 73-435, a n d 73-436
William G. Milliken, Gover
nor of Michigan, et al.,
Petitioners,
73-434 v.
Ronald Bradley and Richard
Bradley, by Their Mother
and Next Friend, Verda
Bradley, et al.
Allen Park Public Schools
et al., Petitioners,
73-435 v.
Ronald Bradley and Richard
Bradley, by Their Mother
and Next Friend, Verda
Bradley, et al.
The Grosse Pointe Public
School System,
Petitioner,
73-436 v.
Ronald Bradley and Richard
Bradley, by Their Mother
and Next Friend, Verda
Bradley, et al.
On Writs of Certiorari to
the United States Court
of Appeals for the Sixth
Circuit.
[July 25, 1974]
M r . Justicb Stewart, concurring.
In joining the opinion. of the Court, I think it appro
priate, in view of some of the extravagant language of
the dissenting opinions, to state briefly m y understanding
of w hat it is that the Court decides today.
2 MILLIKEN v. BRADLEY
T h e respondents com m enced this suit in 1970, claim ing
only th at a constitutionally im perm issible allocation of
educational facilities along racial lines had occurred in
public schools w ithin a single school district whose lines
were coterm inous with those of the city o f D etroit. In
the course of the subsequent proceedings, the District
C ourt found th at public school officials had contributed to
racial segregation w ithin th at district b y m eans of im
proper use of zoning and attendance patterns, optional
attendance areas, and building and site selection. This
finding of a violation of th e E q u al Protection Clause was
upheld b y the Court of A ppeals, and is accepted b y this
Court today. See ante, p. 18, n. 18. In the present pos
ture o f the case, therefore, the Court does n ot deal with
questions of substantive constitutional law. T h e basic
issue now before the Court concerns, rather, the appropri
ate exercise of federal equity jurisdiction.1
N o evidence was adduced and no findings were made
in the D istrict C ou rt concerning the activities o f school
officials in districts outside the city o f D etroit, and no
school officials from the outside districts even partici
pated in the suit until after the D istrict C ourt had made
the initial determ ination th at is the focus of today’s
decision. In spite of the lim ited scope o f the inquiry
and the findings, the D istrict C ourt concluded th at the
only effective rem edy for the constitutional violations
found to have existed w ithin the city o f D etro it was a
desegregation plan calling for busing pupils to and from
school districts outside the city. T h e D istrict Court
found th at any desegregation plan operating wholly
1 As this Court stated in Brown v. Board of Education, 349 U. S.
294, 300, “ [E]quity has been characterized by a practical flexibility
in shaping its remedies and by a facility for adjusting and reconciling
public and private needs. These [school desegregation] cases call
for the exercise of these traditional attributes of equity power.”
“ w ithin the corporate geographical limits of the city”
w ould be deficient since it “would clearly make the entire
D etroit public school system racially identifiable as
B lack .” P et. A p p . 161a-162a . The Court of Appeals,
in affirming the decision that an inter-district remedy
was necessary, noted that a plan limited to the city of
D etroit “ w ould result in an all black school system
im m ediately surrounded by practically all white subur
ban school system s, with an overwhelmingly white m a
jority population in the total metropolitan area.” 484
F . 2d 215 , 245.
T h e courts were in error for the simple reason that the
rem edy th ey thought necessary was not commensurate
with the constitutional violation found. W ithin a single
school district whose officials have been shown to have
engaged in unconstitutional racial segregation, a remedial
decree th at affects every individual school m ay be dic
tated b y com m on sense,” see Keyes v. School District
No. 1, Denver, Colorado, 413 U . S. 189, 203 (1973),
and indeed m ay provide the only effective means to
elim inate segregation “root and branch,” Green v.
County School Board, 391 U . S. 430, 437 (1 9 6 8 ), and
to “ effectuate a transition to a racially nondiscriminatory
school system .” Brown v. Board of Education, 349
U. S. 294, 301 . See Keyes, supra, 413 U . S., at 198-205.
But in this case the Court of Appeals approved the con
cept o f a rem edial decree that would go beyond the
boundaries of the district where the constitutional viola
tion was found, and include schools and school children
in m any other school districts that have presump
tively been adm inistered in complete accord with the
Constitution.
T he opinion of the Court convincingly demonstrates,
ante, pp. 2 2 -2 3 , th at traditions of local control of schools,
together w ith the difficulty of a judicially supervised
MILLIKEN v. BRADLEY 3
4 MILLIKEN v. BRADLEY
restructuring of local adm inistration of schools, render
im proper and inequitable such an inter-district response
to a constitutional violation found to have occurred only
w ithin a single school district.
T h is is not to say, how ever, th at an inter-district
rem edy of the sort approved b y the C ourt of Appeals
w ould n ot be proper, or even necessary, in other factual
situations. W ere it to be shown, for exam ple, th at state
officials had contributed to the separation of the races
b y drawing or redrawing school district lines, see Haney
v. County Board of Education of Sevier County, 429 F .
2d . 364 (C A 8 1 9 6 9 ) ; cf. Wright v. Council of City of
Emporia, 4 0 7 U . S. 4 5 1 ; United States v. Scotland Neck
Board of Education, 4 0 7 U . S. 4 8 4 ; b y transfer o f school
units betw een districts, United States v. Texas, 321 F.
Supp. 1043 ( E D T ex . 1 9 7 0 ), aff’d, 447 F . 2d 441 (C A 5
1 9 7 1 ) ; Turner v. Warren County Board of Education,
313 F . Supp. 380 ( E D N C 1 9 7 0 ) ; or b y purposeful,
racially discrim inatory use of state housing or zoning
laws, then a decree calling for transfer of pupils across
district lines or for restructuring of district lines m ight
w ell be appropriate.
In this case, how ever, no such inter-district violation
was shown. Indeed, no evidence at all concerning the
adm inistration of schools outside the city o f D etro it was
presented other than the fact th at these schools contained
a higher proportion of w hite pupils than did the schools
w ithin the city. Since the m ere fact of different racial
com positions in contiguous districts does not itself im ply
or constitute a violation of the E q u al Protection Clause
in the absence o f a show ing th at such disparity was im
posed, fostered, or encouraged b y the State or its political
subdivisions, it follow s th at no inter-district violation
was show n in this case.2 T h e form ulation of an inter-
2 M y Brother M a r s h a l l seems to ignore this fundamental fact
when he states, post, at 19, that “ the most essential finding [made by
MILLIKEN v. BRADLEY 5
district rem edy was thus simply not responsive to the
factual record before the District Court and was an abuse
of that court’s equitable powers.
In reversing the decision of the Court of Appeals this
C o u it is in no way turning its back on the proscription
of state-im posed segregation first voiced in Brown v.
Board of Education, 347 U . S. 483 (1954), or on the de
lineation of remedial powers and duties most recently
expressed in Swann v. Charlotte-Mecklenburg Board of
Education, 402 U . S. 1 (1971). In Swann the Court
addressed itself to the range of equitable remedies avail
able to the courts to effectuate the desegregation man
dated b y Brown and its progeny, noting that the task in
the District Court] was that Negro children in Detroit had been
confined by intentional acts of segregation to a growing core of
Negro schools surrounded by a receding ring of white schools.”
This conclusion is simply not substantiated by the record presented
in this case. The record here does support the claim made by the
respondents that white and Negro students within Detroit who
otherwise would have attended school together were separated by
acts of the State or its subdivision. However, segregative acts
within the city alone cannot be presumed to have produced—and
no factual showing was made that they did produce—an increase
in the number of Negro students in the city as a whole. It is this
essential fact of a predominantly Negro school population in De
troit— caused by unknown and perhaps unknowable factors such as
in-migration, birth rates, economic changes, or cumulative acts of
private racial fears—that accounts for the “growing core of Negro
schools,” a “ core” that has grown to include virtually the entire city.
The Constitution simply does not allow federal courts to attempt to
change that situation unless and until it is shown that the State,
or its political subdivisions, have contributed to cause the situation
to exist. No record has been made in this case showing that the
racial composition of the Detroit school population or that resi
dential patterns within Detroit and in the surrounding areas were
in any significant measure caused by governmental activity, and it
follows that the situation over which my dissenting Brothers express
concern cannot serve as the predicate for the remedy adopted by the
District Court and approved by the Court of Appeals.
6 MILLIKEN v. BRADLEY
choosing appropriate relief is “ to correct . . . the con
dition th at offends the C on stitu tion ,” and th at “ the na
ture of the violation determ ines the scope of the rem
e d y . . . ” 402 U . S., at 16.
T h e disposition of this case thus falls squarely under
these principles. T h e only “ condition th at offends the
C on stitu tion ” found b y the D istrict C ourt in this case is
the existence of officially supported segregation in and
am ong public schools in D etroit itself. T here were no
findings that the differing racial com position between
schools in the city and in the outlying suburbs w as caused
b y official activ ity of any sort. I t follow s th at the de
cision to include in the desegregation plan pupils from
school districts outside D etro it was n ot predicated upon
any constitutional violation involving those school dis
tricts. B y approving a rem edy th at w ould reach beyond
the lim its o f the city of D etro it to correct a constitutional
violation found to have occurred solely w ithin th at city
the Court o f A p p eals thus w ent beyond the governing
equitable principles established in this C ou rt’s decisions.
SUPEEME COUKT OE THE UNITED STATES
Nos. 73-434, 73-435, and 73-436
William G. Milliken, Gover
nor of Michigan, et al.,
Petitioners,
73-434 v.
Ronald Bradley and Richard
Bradley, by Their Mother
and Next Friend, Verda
Bradley, et al.
Allen Park Public Schools
et al., Petitioners,
73-435 v.
Ronald Bradley and Richard
Bradley, by Their Mother
and Next Friend, Verda
Bradley, et al.
The Grosse Pointe Public
School System,
Petitioner,
73-436 v.
Ronald Bradley and Richard
Bradley, by Their Mother
and Next Friend, Verda
Bradley, et al.
[July 25, 1974]
Me. Justice D ouglas, dissenting.
The Court of Appeals has acted responsibly in these
cases and we should affirm its judgment. This was the
fourth time the case was before it over a span of less than
three years. The Court of Appeals affirmed the District
On Writs of Certiorari to
the United States Court
of Appeals for the Sixth
Circuit.
2 M I L L I K E N v . B R A D L E Y
Court on the issue of segregation and on the “Detroit-
only” plans of desegregation. The Court of Appeals
also approved in principle the use of a metropolitan area
plan, vacating and remanding only to allow the other
affected school districts to be brought in as parties and
in other minor respects.
We have before us today no plan for integration. The
only orders entered so far are interlocutory. No new
principles of law are presented here. Metropolitan treat
ment of metropolitan problems is commonplace. If
this were a sewage problem or a water problem, or an
energy problem, there can be no doubt that Michigan
would stay well within federal constitutional bounds if
she sought a metropolitan remedy. In Bradley v. School
Board of Richm ond, 462 F. 2d 1058, aff’d by an equally
divided Court, 412 U. S. 92, we had a case involving the
Virginia school system where local school boards had
“exclusive jurisdiction” of the problem, not “the State
Board of Education,” 462 F. 2d, at 1067. Here the
Michigan educational system is unitary, heading up in
the legislature under which is the State Board of Educa
tion.1 The State controls the boundaries of school dis
tricts.1 2 The State supervised school site selection.3
The construction was done through municipal bonds
approved by several state agencies.4 Education in Michi
gan is a state project with very little completely local
control,5 except that the schools are financed locally, not
1 Mich. Const., Art. V III, §§ 2 , 3.
2 See Bradley v. Milliken, 484 F. 2d 215, 247-248; Mich. Comp.
Laws §§ 340.402, 340.431, 340.447, 388.681 (1970); Mich. Stat. Ann.
§§ 15.3402,15.3431,15.3447,15,2299.
3 Mich. Comp. Laws §388.851 (1948), as amended 1949 Public
Acts No. 231 amended, 1962 Public Acts No. 175.
4 See Mich. Comp. Laws §132.1-132.2 (1970), Mich. Stat. Ann.
§§ 5.3188 (3 )—(4 ) ; App. I lia 157.
5 See Bradley v. Milliken, 484 F. 2d, at 248-249.
M I L L I X E N v. B R A D L E Y 3
on a statewide basis. Indeed the proposal to put school
funding in Michigan on a statewide basis was defeated
at the polls in November 1972.6 Yet the school districts
by state law are agencies of the State.7 State action is in
deed challenged as violating the Equal Protection Clause.
Whatever the reach of that claim may be, it certainly is
aimed at discrimination based on race.
Therefore as the Court of Appeals held there can be
no doubt that as a matter of Michigan law the State her
self has the final say as to where and how school district
lines should be drawn.8
When we rule against the metropolitan area remedy
we take a step that will likely put the problems of the
Blacks and our society back to the period that antedated
the “separate but equal” regime of Plessy v. Ferguson,
163 U. S. 537. The reason is simple.
The inner core of Detroit is now rather solidly black; 9
and the blacks, we know, in many instances are likely to
6 See Detroit Free Press, Nov. 8, 1972, at 1A, col. 3. Michigan
has recently passed legislation which could eliminate some, but not
all, of the inequities in school financing. See 1973 Public Act No. 101.
7 See 484 F. 2d, at 246-247; Mich. Const. Art. VIII, §§ 2, 3.
8 See n. 2, supra.
9 A tremendous change has occurred in the distribution of this
country’s black population since World War I. See Philip M.
Hauser, “ Demographic Factors in the Integration of the Negro,”
Daedalus fall 1965, pp. 847-877. In 1910, 73% of all blacks lived
on farms and in rural areas; by 1960 73% lived in urban areas,
mainly in the largest metropolitan areas. Moreover, due to the
fact that the black population is younger than the white population,
the concentration of blacks in the cities is even more pronounced
for the school-aged population. The pattern of change which has
existed since World War I is continuing, and hence the proportion of
blacks in the urban North and West will continue to increase.
James S. Coleman, et al., Equality of Educational Opportunity, pp.
39-40 (1966).
4 M I L L I K E N v. B R A D L E Y
be poorer,10 just as were the Chicanos in San Antonio In
dependent School District v. Rodriguez, 411 U . S. 1. By
that decision the poorer school districts11 must pay their
own way. It is therefore a foregone conclusion that we
have now given the States a formula whereby the poor
must pay their own way.12
10 “ There are some definite and systematic directions of difference
between the schools attended by minorities and those attended by
the majority. It appears to be in the most academically related
areas that the schools of minority pupils show the most consistent
deficiencies.” James S. Coleman, et al., supra, at 120.
11 That some school districts are markedly poorer than others is
beyond question. The California Supreme Court has noted that
per pupil expenditures in two different districts—both located in
the same county—were $2,223 and $616. Serrano v. Priest, 5 Cal.
3d 584, 600 n. 15, 487 P. 2d 1241, 1252 n. 15, 96 Cal. Rptr. 601, 612
n. 15 (1971). In New York the Fleischmann Commission reported
that the two Long Island districts of Great Neck and Levittown
spent $2,078 and $1,189 respectively per pupil. New York State
Comm’n on the Quality, Cost and Financing of Elementary and
Secondary Education, Final Report 2.7 (1972). “A further glaring
inequity resulting from the current systems of school finance is that
variations in per pupil expenditures among school districts tend to be
inversely related to educational need. City students, with greater
than average educational deficiencies, consistently have less money
spent on their education and have higher pupil/teacher ratios than
do their high-income counterparts in the favored schools of suburbia.”
Glickstein & Want, Inequality in School Financing: The Role of the
Law, 25 Stan. L. Rev. 335, 338 (1973).
12 Cities face an especially difficult problem in paying the cost
of education, since they have the “municipal overburden” which
results from greater costs for health, public safety, sanitation, pub
lic works, transportation, public welfare, public housing, and recre
ation. Because of municipal overburden, cities on the average de
vote only about 30 percent of their budgets to their schools. This
compares with the over 50 percent which is spent on schools by
the suburbs. J. Berke & J. Callahan, Inequities in School Finance
(1971), reprinted in Senate Select Committee on Equal Educational
Opportunity, 92d Cong., 2d Sess., 129, 142 (Comm. Print 1972); see
Glickstein & Want, supra n. 11, at 387.
Today’s decision given Rodriguez means that there is
no violation of the Equal Protection Clause though the
schools are segregated by race and though the Black
schools are not only “separate” but “inferior.”
So far as equal protection is concerned we are now in
a dramatic retreat from the 8-to-l decision in 1896 that
Blacks could be segregated in public facilities provided
they received equal treatment.
As I indicated in Keyes v. School District No. 1, 413
U. S. 189, 214-217, there is so far as the school cases go
no constitutional difference between de jacto and de
jure segregation. Each school board performs state ac
tion for Fourteenth Amendment purposes when it draws
the lines that confine it to a given area, when it builds
schools at particular sites, or when it allocates students.
The creation of the school districts in Metropolitan De
troit either maintained existing segregation or caused ad
ditional segregation. Restrictive covenents maintained
by state action or inaction build black ghettos. It is state
action when public funds are dispensed by housing agen
cies to build racial ghettos. Where a community is
racially mixed and school authorities segregate schools,
or assign black teachers to black schools or close schools
in fringe areas and build new schools in black areas and
in more distant white areas, the State creates and nur
tures a segregated school system, just as surely as did
those States involved in Brown v. Board of Education,
347 U. S. 483, when they maintained dual school systems.
All these conditions and more were found by the Dis
trict Court to exist. The issue is not whether there
should be racial balance but whether the State’s use of
various devices that end up with black schools and white
schools brought the Equal Protection Clause into effect.
Given the State’s control over the educational system in
Michigan, the fact that the black schools are in one dis-
MILLIKEN v. BRADLEY 5
6 MILLIKEN v. BRADLEY
trict and the w hite schools are in another is not con
trolling— either constitutionally or equitably .13 N o spe
cific p lan has yet been adopted. W e are still a t an
interlocutory stage of a long draw n-out judicial effort
at school desegregation. I t is conceivable th at ghettos
develop on their own w ithout any hint of state action.
B u t since M ich igan b y one device or another has over
the years created black school districts and white school
districts, the task of equity is to provide a unitary
system for the affected area where, as here, the State
washes its hands of its own creations.
13 M e . J u s t i c e S t e w a r t indicates that equitable factors weigh in
favor of local school control and the avoidance of administrative
difficulty given the lack of an “inter-district” violation. Ante, at •
It would seem to me that the equities are stronger in favor of the
children of Detroit who have been deprived of their constitutional
right to equal treatment by the State of Michigan.
SUPREME COURT OF THE UNITED STATES
Nos. 73M34, 73-435, a n d 73-436
William G. Milliken, Gover
nor of Michigan, et al.,
Petitioners,
73-434 v.
Ronald Bradley and Richard
Bradley, by Their Mother
and Next Friend, Verda
Bradley, et al.
Allen Park Public Schools
et al., Petitioners,
73-435 v.
Ronald Bradley and Richard
Bradley, by Their Mother
and Next Friend, Verda
Bradley, et al.
The Grosse Pointe Public
School System,
Petitioner,
73-436 v.
Ronald Bradley and Richard
Bradley, by Their Mother
and Next Friend, Verda
Bradley, et al.
On Writs of Certiorari to
the United States Court
of Appeals for the Sixth
Circuit.
[July 25, 1974]
Mr. Justice W hite , with whom Mr. Justice Doug
las, Mr. Justice Brennan, and Mr. Justice Marshall
join, dissenting.
The D istrict C ourt and the Court of Appeals found
that over a long period of years those in charge of the
2 MILLIKEN v. BRADLEY
M ich igan public schools engaged in various practices
calculated to effect the segregation o f the D etro it school
system . T h e C ou rt does n ot question these findings,
nor could it reasonably do so. N either does it question
the obligation o f the federal courts to devise a feasible
and effective rem edy. B u t it prom ptly cripples the abil
ity o f the judiciary to perform this task, which is of
fu ndam ental im portance to our constitutional system , by
fashioning a strict rule th at rem edies in school cases must
stop at the school district line unless certain other con
ditions are m et. A s applied here, the rem edy for un
questioned violations of the equal protection rights of
D etro it’s N egroes b y the D etro it School Board and the
State of M ich igan m u st be to ta lly confined to the limits
o f the school district and m a y n ot reach into adjoining
or surrounding districts unless and until it is proved
there has been som e sort o f “ interdistrict violation”—
unless unconstitutional actions of the D etro it School
Board have had a segregative im pact on other districts
or unless the segregated condition of the D etro it schools
has itself been influenced b y segregative practices in
those surrounding districts into which it is proposed to
extend the rem edy.
R egretfu lly , and for several reasons, I can join neither
the C ou rt’s ju d gm en t nor its opinion. T h e core of my
disagreem ent is th at deliberate acts of segregation and
their consequences w ill go unrem edied, n ot because a
rem edy w ould be infeasible or unreasonable in terms of
the usual criteria governing school desegregation cases,
b u t because an effective rem edy w ould cause what the
C ou rt considers to be undue adm inistrative inconveni
ence to the State. T h e result is th at th e State of Michi
gan, th e entity a t which the F ourteenth Am endm ent is
directed, has successfully insulated itself from its duty to
provide effective desegregation rem edies b y vesting suffi
cient pow er over its public schools in its local school
districts. I f this is the case in M ichigan, it will be the
case in m ost States.
T here are undoubted practical as well as legal limits
to the rem edial powers of federal courts in school" de
segregation cases. T h e Court has made it clear that the
achievem ent of any particular degree of racial balance
in the school system is not required by the Constitution;
nor m a y it be the prim ary focus of a court in devising an
acceptable rem edy for de jure segregation. A variety
of procedures and techniques are available to a district
court engrossed in fashioning remedies in a case such as
this; bu t the courts m ust keep in mind that they are
dealing w ith the process of educating the young, includ
ing the very young. T he task is not to devise a system
of pains and penalties to punish constitutional violations
brought to light. R ather, it is to desegregate an edu
cational system in which the races have been kept apart,
without, a t the sam e tim e, losing sight of the central ed
ucational function of the schools.
View ed in this light, remedies calling for school zon
ing, pairing, and pupil assignments, become more and
more suspect as th ey require that school children spend
more and m ore tim e in buses going to and from school
and th at m ore and m ore educational dollars be diverted
to transportation system s. M anifestly , these considera
tions are o f im m ediate and urgent concern when the issue
is the desegregation of a city school system where resi
dential patterns are predom inantly segregated and the
respective areas occupied by blacks and whites are heav
ily populated and geographically extensive. Thus, if one
postulates a m etropolitan school system covering a suffi
ciently large area, with the population evenly divided
between w hites and N egroes and with the races occupy
ing identifiable residential areas, there will be very real
practical lim its on the extent to which racially identifi-
MILLIKEN v. BRADLEY 3
4 MILLIKEN v. BRADLEY
able schools can be elim inated w ithin the school district.
I t is also apparent that the larger the proportion of N e
groes in the area, the m ore difficult it w ould be to avoid
having a substantial num ber of all-black or nearly all
black schools.
T h e D etro it school district is both large and heavily
populated. I t covers 139.6 square m iles, encircles two
entirely separate cities and school districts, and sur
rounds a third city on three sides. A lso , w hites and
Negroes live in identifiable areas in the city. T h e 1970
public school enrollm ent in the city school district totalled
289 ,763 and was 6 3 .6 % N egro and 3 4 .8 % w hite.1 If
“ racial balance” were achieved in every school in the
district, each school w ould be approxim ately 6 4 % Negro.
A rem edy confined to the district could achieve no more
desegregation. Furtherm ore, the proposed intracity
rem edies were beset w ith practical problem s. N on e of
the plans lim ited to the school district was satisfactory to
the D istrict C ourt. T h e m ost prom ising proposal, sub
m itted b y respondents, w ho were the plaintiffs in the
D istrict C ourt, would “ leave m an y o f its schools 75 to
90 per cent B lack .” Bradley v. Milliken, 4 8 4 F . 2d 215,
2 4 4 .1 2 T ransportation on a “ vast scale” w ould be re
quired ; 900 buses w ould have to be purchased for the
transportation of pupils w ho are not now bussed. Id., at
243. T h e D istrict C ou rt also found th at the plan
1 The percentage of Negro pupils in the Detroit student population
rose to 64.9% in 1971, to 67.3% in 1972, and to 69.8% in 1973, amid
a metropolitan school population whose racial composition in 1970
was 81% white and 19% Negro. Sources: Exhibit P. C. 6 (App. Va.,
at 16); Racial-Ethnic Distribution of Students and Employees in
the Detroit Public Schools, October 1972, and October 1973; 484 F.
2d, at 250.
2 The District Court’s ruling on the Detroit-only desegregation
plans is set out in full by the Court of Appeals, 484 F. 2d, at 242-245,
and is not otherwise officially reported.
MILLIKEN v. BRADLEY 5
"would change a school system which is now Black and
White to one that would be perceived as Black, thereby
increasing the flight of W hites from the city and the
system , thereby increasing the Black student popula
tion .” Id., at 244. For the District Court, “ [t]h e con
clusion, under the evidence in this case, is inescapable
th at relief o f segregation in the public schools of the
C ity of D etroit cannot be accomplished within the cor
porate geographical lim its of the city.” Ibid.
T h e D istrict Court therefore considered extending its
rem edy to the suburbs. After hearings, it concluded
that a m uch m ore effective desegregation plan could be
im plem ented if the suburban districts were included.
In proceeding to design its plan on the basis that student
bus rides to and from school should not exceed 40 m in
utes each w ay as a general m atter, the court’s express
finding was th at “ [ f ]or all the reasons stated heretofore—
including tim e, distance, and transportation factors—
desegregation within the area described is physically
easier and m ore practicable and feasible, than desegre
gation efforts lim ited to the corporate geographic limits
of the city of D etroit.” 345 F . Supp. 914, 930.
T h e C ourt of Appeals agreed with the District Court
that the rem edy m ust extend beyond the city limits of
D etroit. I t concluded that “ [i]n the instant case the
only feasible desegregation plan involves the crossing of
the boundary lines between the D etroit School District
and adjacent or nearby school districts for the limited
purpose of providing an effective desegregation plan.”
484 F . 2d, at 249. (E m phasis added.) It also agreed
that “ any D etroit only desegregation plan will lead di
rectly to a single segregated D etroit school district over
w helm ingly black in all of its schools, surrounded by a
ring o f suburban school districts overwhelmingly white
in com position in a State in which the racial composition
6 MILLIKEN v. BRADLEY
is 8 7 per cent w hite and 13 per cent b lack .” Ibid. There
w as “ m ore than am ple support for the D istrict Judge’s
findings of unconstitutional segregation b y race result
ing in m ajor part from action and inaction of public au
thorities, both local and State. . . . U nder this record a
rem edial order o f a court of equity which le ft the D etroit
school system overw helm ingly black (for the foreseeable
fu tu re) surrounded b y suburban school system s over
w helm ingly w hite cannot correct the constitutional vio
lations herein fou n d .” Id., at 25 0 . T o conclude other
wise, the C ou rt o f A p p eals announced, w ould call up
“haunting m em ories o f the now long overruled and dis
credited ‘separate b u t equal doctrine’ of P lessy v . Fergu
son, 163 U . S. 537 . . . ( 1 8 9 6 ) ,” and “ w ould be opening a
w ay to n ullify Brow n v . Board of E ducation which over
ruled P lessy____ ” Id., at 249.
T h is C ourt now reverses the C ou rt of A ppeals. It
does n ot question the D istrict C ou rt’s findings that any
feasible D etro it-on ly plan w ould leave m a n y schools
75 to 90 percent black and th at the district would be
com e progressively m ore black as w hites le ft the city.
N either does the C ourt suggest th at including the sub
urbs in a desegregation plan w ould be im practical or in
feasible because o f educational considerations, because
of the num ber o f children requiring transportation, or
because o f the length of their rides. Indeed, the Court
leaves unchallenged the D istrict C ou rt’s conclusion that
a p lan including the suburbs w ould be physically easier
and m ore practical and feasible than a D etro it-on ly plan.
W h ereas the m ost prom ising D e tro it-on ly plan, for ex
am ple, w ould h ave entailed the purchase o f 9 00 buses,
the m etropolitan plan w ould involve the acquisition of
no m ore th an 3 50 new vehicles.
D esp ite the fact th at a m etropolitan rem edy, if the
findings of th e D istrict C ou rt accepted b y the Court of
MILLIKEN v. BRADLEY 7
A p p eals are to be credited, would more effectively de
segregate the D etroit schools, would prevent resegre
gation ,3 and would be easier and more feasible from many
standpoints, the Court fashions out of whole cloth an
arbitrary rule th at remedies for constitutional violations
occurring in a single M ichigan school district must stop
at the school district line. Apparently, no matter how
m uch less burdensom e or more effective and efficient in
m any respects, such as transportation, the metropolitan
plan m igh t be, the school district line m ay not be crossed.
Otherwise, it seems, there would be too much disruption
of the M ich igan scheme for managing its educational
system , too m uch confusion and too much administrative
burden.
T h e D istrict Court, on the scene and familiar with
local conditions, had a wholly different view. T he Court
of A p p eals also addressed itself at length to m atters of
local law and to the problem s that interdistrict remedies
migh t present to the State of M ichigan. Its conclusion,
flatly contrary' to th at of the Court, was that “ the con
stitutional right to equality before the law [is not]
hem m ed in b y the boundaries of a school district” and
that an interdistrict rem edy
"is supported by the status of school districts under
Michigan law and by the historical control exercised
over local school districts by the legislature of Mich
igan and by State agencies and officials . . . . [I]t is
well established under the Constitution and laws of
Michigan that the public school system is a State
function and that local school districts are in.stru-
5 Tae Coen has prewvMy disapproved the implementation, of
prspesed deseccgsocm p h is ir iih o-pe-wte to permit rasegregation.
M z - r s x t, B z - z ' i « ; C h i "• S 450, 459-450 1196%)
8 MILLIKEN v. BRADLEY
m entalities of the State created for adm inistrative
convenience.” 4 4 84 F . 2d, at 2 4 5 -2 4 6 .
I am surprised th at the Court, sitting at this distance
from the State o f M ich igan , claim s better insight than
the C ou rt of A p p eals and the D istrict Court as to
w hether an interdistrict rem edy for equal protection
violations practiced b y the State of M ich igan would
in volve undue difficulties for the State in the m anage
m en t of its public schools. In the area of w hat consti
tutes an acceptable desegregation plan, “ we m u st of
necessity rely to a large extent, as this C ou rt has for
4 The Court of Appeals also noted several specific instances of
school district mergers ordered by the State Board of Education for
financial reasons. 484 F. 2d, at 247. Limitations on the authority
of local school districts were also outlined by the Court of
Appeals:
“ Local school districts, unless they have the approval of the State
Board of Education or the Superintendent of Public Instruction, can
not consolidate with another school district, annex territory, divide
or attach parts of other districts, borrow monies in anticipation of
State aid, or construct, reconstruct or remodel school buildings or
additions to them.” Id., at 249. (Footnotes and supporting statu
tory citations omitted.)
And the Court of Appeals properly considered the State’s statutory
attempt to undo the adoption of a voluntary high school desegrega
tion plan by the Detroit Board of Education as an indicia of state
control over local school district affairs. Ibid. Finally, it is also
relevant to note that the District Court found that the school dis
trict boundaries in that segment of the metropolitan area prelimi
narily designated as the desegregation area “ in general bear no
relationship to other municipal, county, or special district govern
ments, needs or services,” that some educational services are already
provided to students on an interdistrict basis requiring their travel
from one district to another, and that local communities in the
metropolitan area share noneducational interests in common, which
do not adhere to school district lines, and have applied metropolitan
solutions to other governmental needs. Bradley v. Milliken, 345 F.
Supp. 914, 934-935 (ED Mich. 1972).
m ore than 16 years, on the informed judgm ent of the
district courts in the first instance and on courts of
appeals. Swann v. Churlotte-Mecklenburg Board of
Education, 4 0 2 U . S. 1, 28 (1 9 7 1 ). Obviously, whatever
difficulties there m ight be, they are surmountable; for
the C ou rt itself concedes that had there been sufficient
evidence o f an interdistrict violation, the District Court
could have fashioned a single remedy for the districts im
plicated rather than a different remedy for each district
in which the violation had occurred or had an impact.
I am even m ore mystified how the Court can ignore
the legal reality that the constitutional violations, even
if occurring locally, were committed by governmental
entities for which the State is responsible and that it is
the State that m ust respond to the command of the
Fourteenth A m endm ent. A n interdistrict remedy for
the infringem ents that occurred in this case is well within
the confines and powers of the State, which is the gov
ernm ental entity ultim ately responsible for desegregating
its schools. T h e M ichigan Supreme Court has observed
th at “ [ t ] h e school district is a state agency,” Attorney
General v. Lowrey, 131 M ich . 639, 644, 92 N . W . 289, 290
(1 9 0 2 ) , and th at “ [ejducation in Michigan belongs to
the State. I t is no part o f the local self-governm ent in
herent in the township or m unicipality except so far as
the Legislature m ay choose to make it such. T he Consti
tution has turned the whole subject over to the Legisla
ture . . . Attorney General v. Detroit Board of Edu
cation, 154 M ich . 584, 590, 118 N . W . 606, 609 (1908).
I t is unnecessary to catalogue at length the various
public m isdeeds found by the District Court and the
Court o f A ppeals to have contributed to the present seg
regation of the D etroit public schools. T he legislature
contributed directly b y enacting a statute overriding a
partial high school desegregation plan voluntarily
MILLIKEN v. BRADLEY 9
10 MILLIKEN v. BRADLEY
adopted b y the D etro it Board of E ducation . Indirectly,
the trial court found the State was accountable for the
th in ly disguised, pervasive acts of segregation com m itted
b y the D etro it Board,5 for D etro it’s school construction
plans th at w ould prom ote segregation, and for the D e
troit school district not havin g funds for pupil transpor
tation w ithin the district. T h e State w as also chargeable
w ith responsibility for the transportation o f N egro high
school students in the late 1950 ’s from the suburban
Ferndale school district, past closer suburban and D e
troit high schools with predom inantly w hite student
bodies, to a predom inantly N egro high school w ithin
D etroit. Swa?in v. Charlotte-Mecklenburg Board of Ed
ucation, supra, at 2 0 -2 1 , and K eyes v. School District
No. 1, 4 1 3 U . S. 189 (1 9 7 3 ) , m ake abundantly clear th at
the tactics em ployed b y the D etro it Board of E ducation,
a local instrum entality o f the State, violated th e consti
tu tional rights o f the N egro students in D etro it’s public
schools and required equitable relief sufficient to accom
plish the m axim um , practical desegregation w ithin the
pow er o f the political b od y against which the Fourteenth
A m en d m en t directs its proscriptions. N o “ S ta te” m ay
deny any individual the equal protection o f the law s; and
if th e C onstitution and the Suprem acy C lause are to
h ave any substance at all, th e courts m u st be free to de
vise workable rem edies against the political en tity with
5 These included the creation and alteration of attendance zones
and feeder patterns from the elementary to the secondary schools in
a manner naturally and predictably perpetuating racial segregation
of students, the transportation of Negro students beyond predomi
nantly white schools with available space to predominantly Negro
schools, the use of optional attendance areas in neighborhoods in
which Negro families had recently begun to settle to permit white
students to transfer to predominantly white schools nearer the city
limits, and the construction of schools in the heart of residentially
segregated areas, thereby maximizing school segregation.
MILLIKEN v. BRADLEY 11
the effective power to determine local choice. It is also
the case here that the State’s legislative interdiction of
D etro it s voluntary effort to desegregate its school sys
tem was unconstitutional. See North Carolina State
Board of Education v. Swann, 402 U . S. 43 (1971).
T h e Court draws the remedial line at the Detroit
School D istrict boundary, even though the Fourteenth
A m en d m en t is addressed to the State and even though
the State denies equal protection of the laws when its
public agencies, acting in its behalf, invidiously discrim
inate. T h e State ’s default is “ the condition that offends
the C onstitution ,” Swann v. Charlotte-Mecklenburg
Board of Education, supra, at 16, and state officials may
therefore be ordered to take the necessary measures to
com pletely elim inate from the Detroit public schools “all
vestiges o f state-im posed segregation.” Id., at 15. I
cannot understand, nor does the m ajority satisfactorily
explain, w hy a federal court m ay not order an appro
priate interdistrict remedy, if this is necessary or more
effective to accomplish this constitutionally mandated
task. A s the Court unanimously observed in Swann:
“ Once a right and a violation have been shown, the scope
of a district court’s equitable power to remedy past
wrongs is broad, for breadth and flexibility are inherent
in equitable remedies.” Ibid. In this case, both the
right and the State’s Fourteenth Am endm ent violation
have eoncededly been fully established, and there is no
acceptable reason for permitting the party responsible
for the constitutional violation to contain the remedial
powers o f the federal court within administrative bound
aries over which the transgressor itself has plenary power.
T h e unw avering decisions of this Court over the past
20 years support the assumption o f the Court o f A p
peals that th e District Court’s remedial power does not
cease at the school district line. The Court’s firs* for-
12 MILLIKEN v. BRADLEY
m ulation of the rem edial principles to be follow ed in dis
establishing racially discrim inatory school system s recog
nized the variety o f problem s arising from different local
school conditions and the necessity for th at “ practical
flexibility” traditionally associated w ith courts o f equity.
Brown v. Board of Education, 349 U . S. 294 , 2 9 9 -3 0 1
(1 9 5 5 ) {Brown II) . Indeed, the district courts to which
the Brown cases were rem anded for the form ulation of
rem edial decrees were specifically instructed th at they
m igh t consider, inter alia, “ revision of school districts
and attendance areas into com pact units to achieve a
system of determ ining adm ission to the public schools
on a nonracial basis . . . Id., at 3 0 0 -3 0 1 . T h e m alady
addressed in Brown II was the statew ide policy o f re
quiring or perm itting school segregation on the basis of
race, while the record here concerns segregated schools
only in the city o f D etroit. T h e obligation to rectify
the unlaw ful condition nevertheless rests on the State.
T h e perm issible revision o f school districts contem plated
in Brown II rested on the S ta te ’s responsibility for de
segregating its unlaw fully segregated schools, n ot on any
segregative effect which the condition o f segregation in
one school district m igh t h ave had on the schools of a
neighboring district. T h e sam e situation obtains here
and the sam e rem edial pow er is available to the District
C ourt.
L ater cases reinforced the clearly essential rules that
state officials are fu lly answ erable for u nlaw fully caused
conditions o f school segregation which can effectively be
controlled only b y steps beyond th e authority o f local
school districts to take, and that the equity pow er of the
district courts includes the ability to order such measures
im plem ented. W h en the highest officials o f the State of
A rkansas im peded a federal court order to desegregate
the public schools under the im m ediate jurisdiction of
MILLIKEN v. BRADLEY 13
the L ittle R ock School Board, this Court refused to ac
cept the local board’s assertion of its good faith as a legal
excuse for delay in im plem enting the desegregation order.
T h e C ourt emphasized that “ from the point of view of
the Fourteenth Am endm ent, they [the local school board
m em bers] stand in this litigation as agents of the State.”
Cooper v. Aaron, 358 U . S. 1, 16 (1 9 5 8 ). Perhaps more
im portantly for present purposes, the Court went on to
sta te :
“ T h e record before us clearly establishes that the
grow th of the Board’s difficulties to a magnitude be
yond its unaided power to control is the product of
state action. Those difficulties . . . can also be
brought under control by state action.” Ibid.
See also Griffin v. County School Board, 377 U . S. 218,
228, 2 3 3 -2 3 4 (1 9 6 4 ).
In the context o f dual school systems, the Court sub
sequently m ade clear the “ affirmative duty to take what
ever steps m ight be necessary to convert to a unitary
system in which racial discrimination would be elim
inated root and branch” and to come forward with a de
segregation plan that “ promises realistically to work
now.” Green v. County School Board, 391 U . S. 430,
437—438, 439 (1 9 6 8 ). “Freedom -of-choice” plans were
rejected as acceptable desegregation measures where
“reasonably available other ways . . . promising speedier
and m ore effective conversion to a unitary, nonracial
school system . . exist. Id., at 441. Im perative insist
ence on im m ediate fu ll desegregation of dual school sys
tem s “ to operate now and hereafter only unitary schools”
was reiterated in Alexander v. Holmes County Board of
Education, 396 U . S. 19, 20 (1 9 6 9 ), and Carter v. West
Feliciana Parish School Board, 396 U . S. 290 (1970).
T h e breadth of the equitable authority of the district
courts to accom plish these comprehensive tasks was re-
14 MILLIKEN v. BRADLEY
affirmed in much greater detail in Swann, supra, and the
companion case of D avis v. B oard o f School Com m ission
ers, 402 U. S. 33 (1971), where there was unanimous as
sent to the following propositions:
“Having once found a violation, the district judge
or school authorities should make every effort to
achieve the greatest possible degree of actual de
segregation, taking into account the practicalities of
the situation. A district court may and should
consider the use of all available techniques includ
ing restructuring of attendance zones and both
contiguous and noncontiguous attendance zones. . . .
The measure of any desegregation plan is its effec
tiveness.” Id., at 37.
No suggestion was made that interdistrict relief was not
an available technique. In Swann itself, the Court,
without dissent, recognized that the district judge, in ful
filling his obligation to “make every effort to achieve the
greatest possible degree of actual desegregation . . . will
thus necessarily be concerned with the elimination of
one-race schools.” 402 U. S., at 26. Nor was there any
dispute that to break up the dual school system, it was
within the District Court’s “broad remedial powers” to
employ a “ frank—and sometimes drastic—gerrymander
ing of school districts and attendance zones •[,]” as well as
“pairing, ‘clustering,’ or ‘grouping’ of schools,” to de
segregate the “ formerly all-Negro schools,” despite the
fact that these zones might not be compact or contiguous
and might be “on opposite ends of the city.” Id., at 27.
The school board in Swann had jurisdiction over a 550
square mile area encompassing the city of Charlotte and
surrounding Mecklenburg County, North Carolina. The
Mobile County, Alabama, board in D avis embraced a
1,248 square mile area, including the city of Mobile.
Yet the Court approved the District Court’s authority to
MILLIKEN v. BRADLEY 15
award countywide relief in each case in order to ac
complish desegregation of the dual school system.
Even more recently, the Court specifically rejected the
claim that a new school district, which admittedly would
operate a unitary school system within its borders, was
beyond the reach of a court-ordered desegregation plan
for other school districts, where the effectiveness of the
plan as to the other districts depended upon the avail
ability of the facilities and student population of the
new district. In Wright v. Council o j the City of Em
poria, 407 U. S. 451, 470 (1972), we held “that a new
school district may not be created where its effect would
be to impede the process of dismantling a dual system.”
Mr. J u st ic e Stew art’s opinion for the Court made clear
that if a proposal to erect new district boundary lines
“would impede the dismantling of the [pre-existing]
dual system, then a district court, in the exercise of its
remedial discretion, may enjoin it from being carried
out.’ Id., at 460. In United States v. Scotland Neck
C ity Board o f Education, 407 U. S. 484 (1972), this same
standard was applied to forbid North Carolina from
creating a new city school district within a larger district
which was in the process of dismantling a dual school
system. The Court noted that if establishment of the
new district were permitted, the “traditional racial iden
tities of the schools in the area would be maintained,”
id., at 490.
Until today, the permissible contours of the equitable
authority of the district courts to remedy the unlawful
establishment of a dual school system have been exten
sive, adaptable, and fully responsive to the ultimate
goal of achieving “the greatest possible degree of actual
desegregation.” There are indeed limitations on the
equity powers of the federal judiciary, but until now the
Court has not accepted the proposition that effective
16 MILLIKEN v. BRADLEY
enforcement of the Fourteenth Amendment could be
limited by political or administrative boundary lines
demarcated by the very State responsible for the con
stitutional violation and for the disestablishment of the
dual system. Until now the Court has instead looked
to practical considerations in effectuating a desegregation
decree, such as excessive distance, transportation time
and hazards to the safety of the school children involved
in a proposed plan. That these broad principles have
developed in the context of dual school systems com
pelled or authorized by state statute at the time of
B row n v. Board o f E ducation, 347 U. S. 483 (1954)
(B row n / ) , does not lessen their current applicability to
dual systems found to exist in other contexts, like that in
Detroit, where intentional school segregation does not
stem from the compulsion of state law, but from delib
erate individual actions of local and state school author
ities directed at a particular school system. The major
ity properly does not suggest that the duty to eradicate
completely the resulting dual system in the latter con
text is any less than in the former. But its reason for
incapacitating the remedial authority of the federal ju
diciary in the presence of school district perimeters in
the latter context is not readily apparent.
The result reached by the Court certainly cannot be
supported by the theory that the configuration of local
governmental units is immune from alteration when nec
essary to redress constitutional violations. In addi
tion to the well-established principles already noted, the
Court has elsewhere required the public bodies of a State
to restructure the State’s political subdivisions to remedy
infringements of the constitutional rights of certain
members of its populace, notably in the reapportionment
cases. In R eyn old s v. Sims, 377 U. S. 533 (1964), for
example, which held that equal protection of the laws
MILLIKEN v. BRADLEY 17
demands that the seats in both houses of a bicameral
state legislature be apportioned on a population basis,
thus necessitating wholesale revision of Alabama’s vot
ing districts, the Court remarked:
“Political subdivisions of States—counties, cities,
or whatever—never were and never have been con
sidered as sovereign entities. Rather, they have
been traditionally regarded as subordinate govern
mental instrumentalities created by the State to as
sist in the carrying out of state governmental
functions.” Id,., at 575.
And even more pointedly, the Court declared in Gomil-
lion v. Lightfoot, 364 U. S. 339, 344-345 (1960), that
“ [legislative control of municipalities, no less than other
state power, lies within the scope of relevant limitations
imposed by the United States Constitution.”
Nor does the Court’s conclusion follow from the talis-
manic invocation of the desirability of local control over
education. Local autonomy over school affairs, in the
sense of the community’s participation in the decisions
affecting the education of its children, is, of course, an
important interest. But presently constituted school
district lines do not delimit fixed and unchangeable areas
of a local educational community. If restructuring is
required to meet constitutional requirements, local au
thority may simply be redefined in terms of whatever
configuration is adopted, with the parents of the children
attending schools in the newly demarcated district or at
tendance zone continuing their participation in the policy
management of the schools with which they are con
cerned most directly. The majority’s suggestion that
judges should not attempt to grapple with the adminis
trative problems attendant on a reorganization of school
attendance patterns is wholly without foundation. It is
precisely this sort of task which the district courts have
18 MILLIKEN v. BRADLEY
been properly exercising to vindicate the constitutional
rights of Negro students since B row n I and which the
Court has never suggested they lack the capacity to
perform. Intradistrict revisions of attendance zones, and
pairing and grouping of schools, are techniques unani
mously approved in Swann which entail the same sensi
tivity to the interest of parents in the education their
children receive as would an interdistrict plan which is
likely to employ the very same methods. There is no
reason to suppose that the District Court, which has not
yet adopted a final plan of desegregation, would not be
as capable of or as likely to give sufficient weight to the
interest in community participation in schools in an in
terdistrict setting, consistent with the dictates of the
Fourteenth Amendment. The majority's assumption
that the District Court would act otherwise is a radical
departure from the practical flexibility previously left
to the equity powers of the federal judiciary.
Finally, I remain wholly unpersuaded by the Court’s
assertion that “ the remedy is necessarily designed, as all
remedies are, to restore the victims of discriminatory
conduct to the position they would have occupied in the
absence of such conduct.” A n te, p . ------. In the first
place, under this premise the Court’s judgment is itself
infirm; for had the Detroit school system not followed
an official policy of segregation throughout the 1950’s
and 1960’s, Negroes and whites would have been going
to school together. There would have been no, or at
least not as many, recognizable Negro schools and no,
or at least not as many, white schools, but “ just schools,”
and neither Negroes nor whites would have suffered from
the effects of segregated education, with all its short
comings. Surely the Court’s remedy will not restore to
the Negro community, stigmatized as it was by the dual
school system, what it would have enjoyed over all or
MILLIKEN v. BRADLEY 19
most- of this period if the remedy is confined to present-
day Detroit; for the maximum remedy available within
that area will leave many of the schools almost totally
black, and the system itself will be predominantly black
and will become increasingly so. Moreover, when a State
has engaged in acts of official segregation over a lengthy
period of time, as in the case before us, it is unrealistic
to suppose that the children who were victims of the
State’s unconstitutional conduct could now be provided
the benefits of which they were wrongfully deprived.
Nor can the benefits which accrue to school systems in
which school children have not been officially segregated,
and to the communities supporting such school systems,
be fully and immediately restored after a substantial
period of unlawful segregation. The education of chil
dren of different races in a desegregated environment
has unhappily been lost, along with the social, economic,
and political advantages which accompany a desegre
gated school system as compared with an unconstitu
tionally segregated system. It is for these reasons that
the Court has consistently followed the course of requir
ing the effects of past official segregation to be eliminated
“root and branch” by imposing, in the present, the duty
to provide a remedy which will achieve “the greatest
possible degree of actual desegregation, taking into ac
count the practicalities of the situation.” It is also for
these reasons that once a constitutional violation has
been found, the District Judge obligated to provide such
a remedy “ will thus necessarily be concerned with the
elimination of one-race schools.” These concerns were
properly taken into account by the District Judge in
this case. Confining the remedy to the boundaries of
the Detroit district is quite unrelated either to the goal
of achieving maximum desegregation or to those intensely
practical considerations, such as the extent and expense
20 MILLIKEN v. BRADLEY
of transportation, that have imposed limits on remedies
in cases such as this. The Court’s remedy, in the end,
is essentially arbitrary and will leave serious violations
of the Constitution substantially unremedied.
I agree with my Brother D ouglas that the Court of
Appeals has acted responsibly in these cases. Regret
tably, the majority’s arbitrary limitation on the equitable
power of federal district courts, based on the invisible
borders of local school districts, is unrelated to the State’s
responsibility for remedying the constitutional wrongs
visited upon the Negro school children of Detroit. It
is oblivious to the potential benefits of metropolitan re
lief, to the noneducational communities of interest
among neighborhoods located in and sometimes bridging
different school districts, and to the considerable inter
district cooperation already existing in various educa
tional areas. Ultimately, it is unresponsive to the goal of
attaining the utmost actual desegregation consistent with
restraints of practicability and thus augurs the frequent
frustration of the remedial powers of the federal courts.
Here the District Court will be forced to impose an
intracity desegregation plan more expensive to the dis
trict, more burdensome for many of Detroit’s Negro stu
dents and surely more conducive to white flight than a
metropolitan plan would be— all of this merely to avoid
what the Detroit School Board, the District Court, and
the en banc Court of Appeals considered to be the very
manageable and quite surmountable difficulties that
would be involved in extending the desegregation remedy
to the suburban school districts.
I am therefore constrained to record my disagreement
and dissent.
SUPREME COURT OF THE UNITED STATES
Nos. 73-434, 73-435, and 73-436
William G. Milliken, Gover
nor of Michigan, et al.,
Petitioners,
73-434 v.
Ronald Bradley and Richard
Bradley, by Their Mother
and Next Friend, Verda
Bradley, et al.
Allen Park Public Schools
and Next Friend, Verda
Bradley, et al.
The Grosse Pointe Public
School System,
Petitioner,
73-436 v.
Ronald Bradley and Richard
Bradley, by Their Mother
and Next Friend, Verda
Bradley, et al.
M r . J u st ic e M a r sh a ll , with whom M r . J ustice
D ouglas, M r . J u stice B r e n n a n , and M r . J ustice W h it e
join, dissenting.
In B row n v. Board o f Education, 347 U. S. 483 (1954),
this Court held that segregation of children in public
schools on the basis of race deprives minority group chil
et al., Petitioners,
On Writs of Certiorari to
the United States Court
of Appeals for the Sixth
Circuit.
73-435 v.
Ronald Bradley and Richard
Bradley, by Their Mother
[July 25, 1974]
2 MILLIKEN v. BRADLEY
dren of equal educational opportunities and therefore
denies them the equal protection of the laws under the
Fourteenth Amendment. This Court recognized then
that remedying decades of segregation in public education
would not be an easy task. Subsequent events, un
fortunately, have seen that prediction bear bitter fruit.
But however imbedded old ways, however ingrained old
prejudices, this Court has not been diverted from its ap
pointed task of making “ a living truth” of our consti
tutional ideal of equal justice under law. C ooper v.
Aaron, 358 U. S. 1, 20 (1958).
After 20 years of small, often difficult steps toward that
great end, the Court today takes a giant step backwards.
Notwithstanding a record showing widespread and per
vasive racial segregation in the educational system pro
vided by the State of Michigan for children in Detroit,
this Court holds that the District Court was powerless
to require the State to remedy its constitutional viola
tion in any meaningful fashion. Ironically purporting
to base its result on the principle that the scope of the
remedy in a desegregation case should be determined by
the nature and the extent of the constitutional violation,
the Court’s answer is to provide no remedy at all for the
violation proved in this case, thereby guaranteeing that
Negro children in Detroit will receive the same separate
and inherently unequal education in the future as they
have been unconstitutionally afforded in the past.
I cannot subscribe to this emasculation of our con
stitutional guarantee of equal protection of the laws and
must respectfully dissent. Our precedents, in my view,
firmly establish that where, as here, state-imposed segre
gation has been demonstrated, it becomes the duty of the
State to eliminate root and branch all vestiges of racial
discrimination and to achieve the greatest possible degree
of actual desegregation. I agree wTith both the District
MILLIKEN v. BRADLEY 3
Court and the Court of Appeals that, under the facts of
this case, this duty cannot be fulfilled unless the State
of Michigan involves outlying metropolitan area school
districts in its desegregation remedy. Furthermore, I
perceive no basis either in law or in the practicalities of
the situation justifying the State’s interposition of school
district boundaries as absolute barriers to the implemen
tation of an effective desegregation remedy. Under es
tablished and frequently used Michigan procedures, school
district lines are both flexible and permeable for a wide
variety of purposes, and there is no reason why they
must now stand in the way of meaningful desegregation
relief.
The rights at issue in this case are too fundamental
to be abridged on grounds as superficial as those relied
on by the majority today. We deal here with the right of
all of our children, whatever their race, to an equal start
in life and to an equal opportunity to reach their full
potential as citizens. Those children who have been de
nied that right in the past deserve better than to see
fences thrown up to deny them that right in the future.
Our Nation, I fear, will be ill-served by the Court’s re
fusal to remedy separate and unequal education, for un
less our children begin to learn together, there is little
hope that our people will ever learn to live together.
I
The great irony of the Court’s opinion and, in my
view, its most serious analytical flaw may be gleaned
from its concluding sentence, in which the Court remands
for "'prompt formulation of a decree directed to elimi
nating the segregation found to exist in Detroit city
schools, a remedy which has been delayed since 1970.
Ante, at 33, The majority. howTever. seems to have for
gotten the District Court’s explicit finding that a Detroit-
4 MILLIKEN v. BRADLEY
only decree, the only remedy permitted under today’s
decision, “ would not accomplish desegregation.”
Nowhere in the Court’s opinion does the majority con
front, let alone respond to, the District Court’s conclu
sion that a remedy limited to the city of Detroit would
not effectively desegregate the Detroit city schools. I,
for one, find the District Court’s conclusion well sup
ported by the record and its analysis compelled by our
prior cases. Before turning to these questions, however,
it is best to begin by laying to rest some mischaracteri-
zations in the Court’s opinion with respect to the basis
for the District Court’s decision to impose a metropolitan
remedy.
The Court maintains that while the initial focus of
this lawsuit was the condition of segregation within the
Detroit city schools, the District Court abruptly shifted
focus in mid-course and altered its theory of the case.
This new theory, in the majority’s words, was “equating
racial imbalance with a constitutional violation calling
for a remedy.” A n te , at 21 n. 19. As the following
review of the District Court’s handling of the case dem
onstrates, however, the majority’s characterization is
totally inaccurate. Nowhere did the District Court in
dicate that racial imbalance between school districts in
the Detroit metropolitan area or within the Detroit
school district constituted a constitutional violation call
ing for inter-district relief." The focus of this case was
from the beginning, and has remained, the segregated
system of education in the Detroit city schools and the
steps necessary to cure that condition which offends the
Fourteenth Amendment. .
The District Court’s consideration of this case began
with its finding, which the majority accepts, that the
State of Michigan, through its instrumentality, the De
troit Board of Education, engaged in widespread pur-
MILLIKEN v. BRADLEY 5
poseful acts of racial segregation in the Detroit school
district. Without belaboring the details, it is sufficient
to note that the various techniques used in Detroit were
typical of methods employed to segregate students by
race in areas where no statutory dual system of educa
tion has existed. See, e. g„ K eyes v. School District
N o. 1, 413 U. S. 189 (1973). Exacerbating the effects
of extensive residential segregation between Negroes and
whites, the school board consciously drew attendance
zones along lines which maximized the segregation of
the races in schools as well. Optional attendance zones
were created for neighborhoods undergoing racial transi
tion so as to allow whites in these areas to escape inte
gration. Negro students in areas with overcrowded
schools were transported past or away from closer white
schools with available space to more distant Negro
schools. Grade structures and feeder school patterns
were created and maintained in a manner which had the
foreseeable and actual effect of keeping Negro and white
pupils in separate schools. Schools were also constructed
in locations and in sizes which ensured that they would
open with predominantly one-race student bodies. In
sum, the evidence adduced below showed that Negro
children had been intentionally confined to an expanding
core of virtually all-Negro schools immediately sur
rounded by a receding band of all-white schools.
Contrary to the suggestions in the Court’s opinion,
the basis for affording a desegregation remedy in this
case was not some perceived racial imbalance either
between schools within a single school district or between
independent school districts. What we confront here is
“a systematic program of segregation affecting a sub
stantial portion of the students, schools . . . and facili
ties within the school system K eyes, supra, 413
U. S., at 201. The constitutional violation found here
6 MILLIKEN v. BRADLEY
was not some de fa cto racial imbalance, but rather the
purposeful, intentional, massive, de jure segregation of
the Detroit city schools, which under our decision in
K ey es , forms “a predicate for a finding of the existence
of a dual school system,” 413 U. S., at 201, and justifies
“all-out desegregation.” Id., at 214.
Having found a de jure segregated public school sys
tem in operation in the city of Detroit, the District Court
turned next to consider which officials and agencies
should be assigned the affirmative obligation to cure the
constitutional violation. The court concluded that re
sponsibility for the segregation in the Detroit city schools
rested not only with the Detroit Board of Education, but
belonged to the State of Michigan itself and the state de
fendants in this case—that is, the Governor of Michigan,
the Attorney General, the State Board of Education, and
the State Superintendent of Public Instruction. While
the validity of this conclusion will merit more extensive
analysis below, suffice it for now to say that it was based
on three considerations. First, the evidence at trial
showed that the State itself had taken actions con
tributing to the segregation within the Detroit schools.
Second, since the Detroit Board of Education was an
agency of the State of Michigan, its acts of racial dis
crimination were acts of the State for purposes of the
Fourteenth Amendment. Finally, the District Court
found .that under Michigan law and practice, the system
of education was in fact a sta te school system, character
ized by relatively little local control and a large degree
of centralized state regulation, with respect to both
educational policy and the structure and operation of
school districts.
Having concluded, then, that the school system in
the city of Detroit was a de jure segregated system and
that the State of Michigan had the affirmative duty to
remedy that condition of segregation, the District Court
then turned to the difficult task of devising an effective
remedy. It bears repeating that the District Court’s
focus at this stage of the litigation remained what it had
been at the beginning—the condition of segregation
within the Detroit city schools. As the District Court
stated: “From the initial ruling [on segregation] to this
day, the basis of the proceedings has been and remains
the violation: de jure segregation . . . . The task be
fore this court, therefore, is now, and . . . has always
been, how to desegregate the Detroit public schools.”
The District Court first considered three desegregation
plans limited to the geographical boundaries of the city
of Detroit. All were rejected as ineffective to desegre
gate the Detroit city schools. Specifically, the District
Court determined that the racial composition of the
Detroit student body is such that implementation of any
Detroit-only plan “would clearly make the entire Detroit
public school system racially identifiable as Black” and
would “leave many of its schools 75 to 90 percent Black.”
The District Court also found that a Detroit-only plan
“would change a school system which is now Black and
White to one that would be perceived as Black, thereby
increasing the flight of Whites from the city and the
system, thereby increasing the Black student popula
tion.” Based on these findings, the District Court
reasoned that “relief of segregation in the public schools
of the City of Detroit cannot be accomplished within the
corporate geographical limits of the city” because a De
troit-only decree “would accentuate the racial identi-
fiability of the district as a Black school system, and
would not accomplish desegregation.” The District
Court therefore concluded that it “must look beyond the
MILLIKEN v. BRADLEY 7
8 MILLIKEN v. BRADLEY
limits of the Detroit school district for a solution to the
problem of segregation in the Detroit public schools . . .
In seeking to define the appropriate scope of that ex
panded desegregation area, however, the District Court
continued to maintain as its sole focus the condition
shown to violate the Constitution in this case—the segre
gation of the Detroit school district. As it stated, the
primary question “remains the determination of the
area necessary and practicably effective to eliminate
‘root and branch’ the effects of state-imposed and sup
ported segregation and to desegregate the Detroit public
schools.”
There is simply no foundation in the record, then, for
the majority’s accusation that the only basis for the Dis
trict Court’s order was some desire to achieve a racial
balance in the Detroit metropolitan area.1 In fact, just
the contrary is the case. In considering proposed de
segregation areas, the District Court had occasion to
criticize one of the State’s proposals specifically because
it had no basis other than its “particular racial ratio”
and did not focus on “relevant factors, like eliminating
racially identifiable schools [and] accomplishing maxi
mum actual desegregation of the Detroit public schools.”
Similarly, in rejecting the Detroit school board’s pro
posed desegregation area, even though it included more
1 Contrary to the Court’s characterization, the use of racial ratios
in this case in no way differed from that in Swann v. Charlotte-
Mecklenburg Board oj Education, 402 U. S. 1 (1971). Here, as
there, mathematical ratios were used simply as “a starting point in
the process of shaping a remedy, rather than an inflexible require
ment.” 402 U. S., at 25. It may be expected that a final desegre
gation plan in this case would deviate from a pure mathematical
approach. Indeed, the District Court’s most recent order appointing
a panel of experts to draft an inter-district plan requires only that
the plan be designed “to achieve the greatest degree of actual de
segregation . . . [w] ithin the limitations of reasonable travel time and
distance factors.” App. 101a. Compare 402 U. S., at 23.
MILLIKEN v. BRADLEY 9
all- white districts and therefore achieved a higher white-
Negro ratio, the District Court commented:
“There is nothing in the record which suggests
that these districts need be included in the desegre
gation area in order to disestablish the racial
identifiability of the Detroit public schools. From
the evidence, the primary reason for the Detroit
School Board’s interest in the inclusion of these
school districts is not racial desegregation but to
increase the average socio-economic balance of all
the schools in the abutting regions and clusters.”
The Court also misstates the basis for the District
Court’s order by suggesting that since the only segre
gation proved at trial was within the Detroit school dis
trict, any relief which extended beyond the jurisdiction
of the Detroit Board of Education would be inappropri
ate because it would impose a remedy on outlying dis
tricts “not shown to have committed any constitutional
violation.” A n te, at 26.” The essential foundation of
inter-district relief in this case was not to correct con
ditions within outlying districts who themselves engaged
in purposeful segregation. Instead, inter-district relief
was seen as a necessary part of any meaningful effort by
the State of Michigan to remedy the state-caused segre
gation within the city of Detroit.
Rather than consider the propriety of inter-district
relief on this basis, however, the Court has conjured up
a largely fictional account of what the District Court
was attempting to accomplish. With all due respect,
2 It does not appear that even the majority places any real weight
on this consideration since it recognizes that inter-district relief would
be proper where a constitutional violation within one district pro
duces a significant segregative effect in another district, see ante,
at 25, thus allowing inter-district relief to touch districts which have
not themselves violated the constitution.
10 MILLIKEN v. BRADLEY
the Court, in my view, does a great disservice to the Dis
trict Judge who labored long and hard with this com
plex litigation by accusing him of changing horses in
mid-stream and shifting the focus of this case from the
pursuit of a remedy for the condition of segregation
within the Detroit school district to some unprincipled
attempt to impose his own philosophy of racial balance
on the entire Detroit metropolitan aera. See ante, at
18-19. The focus of this case has always been the
segregated system of education in the city of Detroit.
The District Court determined that inter-district relief
was necessary and appropriate only because it found that
the condition of segregation within the Detroit school
district could not be cured with a Detroit-only remedy.
It is on this theory that the inter-district relief must
stand or fall. Unlike the Court, I perceive my task to
be to review the District Court’s order for what it is,
rather than to criticize it for what it manifestly is not.
II
As the foregoing demonstrates, the District Court’s
decision to expand its desegregation decree beyond the
geographical limits of the city of Detroit rested in large
part on its conclusions (A) that the State of Michigan
was ultimately responsible for curing the condition of
segregation within the Detroit city schools, and (B) that
a Detroit-only remedy would not accomplish this task.
In my view, both of these conclusions are well supported
by the facts of this case and by this Court’s precedents.
A
To begin with, the record amply supports the District
Court’s findings that the State of Michigan, through
state officers and state agencies, had engaged in purpose
ful acts which created or aggravated segregation in the
MILLIKEN v. BRADLEY 11
Detroit schools. The State Board of Education, for
example, prior to 1962, exercised its authority to super
vise local school site selection in a manner which con
tributed to segregation. 484 F. 2d, at 238. Further
more, the State’s continuing authority, after 1962, to
approve school building construction plans3 had inter
twined the State with site selection decisions of the
Detroit Board of Education which had the purpose and
effect of maintaining segregation.
The State had also stood in the way of past efforts to
desegregate the Detroit city schools. In 1970, for ex
ample, the Detroit School Board had begun implementa
tion of its own desegregation plan for its high schools,
despite considerable public and official resistance. The
State Legislature intervened by enacting Act 48 of the
Public Acts of 1970, specifically prohibiting implementa
tion of the desegregation plan and thereby continuing
the growing segregation of the Detroit school system.
Adequate desegregation of the Detroit system was also
hampered by discriminatory restrictions placed by the
State on the use of transportation within Detroit. While
state aid for transportation was provided by statute for
suburban districts, many of which were highly urbanized,
aid for intra-city transportation was excepted. One of
the effects of this restriction was to encourage the con
struction of small walk-in neighborhood schools in De
troit, thereby lending aid to the intentional policy of
creating a school system which reflected, to the greatest
extent feasible, extensive residential segregation. In
deed, that one of the purposes of the transportation re
striction was to impede desegregation was evidenced
when the Michigan Legislature amended the State
Transportation Aid Act to cover intra-city transporta
tion but expressly prohibited the allocation of funds for
3 See Mich. Comp. Laws § 388.351.
12 MILLIKEN v. BRADLEY
cross busing of students within a school district to
achieve racial balance.4 Cf. North Carolina v. Swann,
402 U. S. 43 (1971).
Also significant was the State’s involvement during
the 1950’s in the transportation of Negro high school
students from the Carver school district past a closer
white high school in the Oak Park district to a more dis
tant Negro high school in the Detroit district. Certainly
the District Court’s finding that the State Board of Ed
ucation had knowledge of this action and had given its
tacit or express approval was not clearly erroneous.
Given the comprehensive statutory powers of the State
Board of Education over contractual arrangements be
tween school districts in the enrollment of students on a
nonresident tuition basis, including certification of the
number of pupils involved in the transfer and the
amount of tuition charged, over the review of trans
portation routes and distances, and over the disburse
ment of transportation funds,5 the State Board in
evitably knew and understood the significance of this
discriminatory act.
Aside from the acts of purposeful segregation com
mitted by the State Legislature and the State Board of
Education, the District Court also concluded that the
State was responsible for the many intentional acts of
segregation committed by the Detroit Board of Educa
tion, an agency of the State. The majority is only
willing to accept this finding arguendo. See ante, at 28.
I have no doubt, however, as to its validity under the
Fourteenth Amendment.
“The command of the Fourteenth Amendment,” it
should be recalled, “is that no ‘State’ shall deny to any
person within its jurisdiction the equal protection of the
4 See Mich. Comp. Laws § 388.1179.
5 See Mich. Comp. Laws §§ 388.629 & 340.600.
MILL1KEN v. BRADLEY 13
laws.” C ooper v. Aaron, 358 U. S. 1, 16 (1958). While
a State can act only through “the officers or agents by
whom its powers are exerted,” E x parte Virginia, 100
U. S. 339, 347 (1880), actions by an agent or officer of
the State are encompassed by the Fourteenth Amend
ment for, “as he acts in the name and for the State, and
is clothed with the State’s power, his act is that of the
State.” Id., at 347. See also Cooper v. Aaron, supra;
Virginia v. Rives, 100 U. S. 313, 318 (1880); Shelley v.
K raem er, 334 U. S. 1, 14 (1948).
Under Michigan law “a school district is an agency of
the State government.” School District of Lansing v.
State Board o f Education, 367 Mich. 591, 600, 116 N. W.
2d 866, 870 (1962). It is “a legal division of territory,
created by the State for educational purposes, to which
the State has granted such powers as are deemed neces
sary to permit the district to function as a State agency.”
Board o f Education of D etroit v. Superintendent of Pub
lic Instruction , 319 Mich. 436, 29 N. W. 2d 902 (1947).
Racial discrimination by the school district, an agency
of the State, is therefore racial discrimination by the
State itself, forbidden by the Fourteenth Amendment.
See, e. g., Pennsylvania v. Board of Directors, 353 U. S.
230 (1957).
We recognized only last Term in K eyes that it was
the State itself which was ultimately responsible for
de jure acts of segregation committed by a local school
board. A deliberate policy of segregation by the local
board, we held, amounted to “state-imposed segrega
tion.” 413 U. S., at 200. Wherever a dual school sys
tem exists, whether compelled by state statute or created
by a local board’s systematic program of segregation,
“the State automatically assumes an affirmative duty
‘to effectuate a transition to a racially nondiscriminatory
school system’ [and] to eliminate from the public schools
14 MILLIKEN v. BRADLEY
within their school system ‘all vestiges of state-imposed
segregation.’ ” K ey es , supra, 413 U. S., at 200 (emphasis
added).
Vesting responsibility with the State of Michigan for
Detroit’s segregated schools is particularly appropriate as
Michigan, unlike some other States, operates a single
statewide system of education rather than several sep
arate and independent local school systems. The ma
jority’s emphasis on local governmental control and local
autonomy of school districts in Michigan will come as a
surprise to those with any familiarity with that State’s
system of education. School districts are not separate
and distinct sovereign entities under Michigan law, but
rather are “ auxiliaries of the State,” subject to its “ ab
solute power.” A tto rn ey G eneral v. L ow rey, 199 U. S.
233, 240 (1905). The courts of the State have re
peatedly emphasized that education in Michigan is not
a local governmental concern, but a state function.
“Unlike the delegation of other powers by the legis
lature to local governments, education is not in
herently a part of the local self-government of a
municipality . . . . Control of our public school
system is a State matter delegated and lodged in
the state legislature by the Constitution. The
policy of the State has been to retain control of its
school system, to be administered throughout the
State under State laws by local State agencies or
ganized with plenary powers to carry out the dele
gated functions given it by the legislature.” School
D istrict o f Lansing v. State B oard o f E ducation, 367
Mich. 591, 595, 116 N. W. 2d 866, 868 (1962).
The Supreme Court of Michigan has noted the deep
roots of this policy.
“It has been settled by the Ordinance of 1787, the
several constitutions adopted in this State, by its
MILLIKEN v. BRADLEY 15
uniform course of legislation, and by the decisions
of this court, that education in Michigan is a matter
of State concern, that it is no part of the local self-
government of a particular township or munic
ipality . . . . The legislature has always dictated
the educational policy of the State.” In re School
D istrict N o. 6, 284 Mich. 132, 145-146, 278 N. W.
972 (1938).
The State’s control over education is reflected in the
fact that, contrary to the Court’s implication, there is
little or no relationship between school districts and
local political units. To take the 85 local school dis
tricts in the Detroit metropolitan area as examples, 17
districts lie in two counties, two in three counties. One
district serves five municipalities; other suburban munic
ipalities are fragmented into as many as six school dis
tricts. Nor is there any apparent state policy with
regard to the size of school districts, as they now range
from 2,000 to 285,000 students.
Centralized state control manifests itself in practice
as well as in theory. The state controls the financing of
education in several ways. The legislature contributes
a substantial portion of most school districts’ operating
budgets with funds appropriated from the State’s Gen
eral Fund revenues raised through statewide taxation.8
The State’s power over the purse can be and is in fact
used to enforce the State’s powers over local districts.6 7
In addition, although local districts obtain funds through
6 See Mich. Comp. Laws §388.611. The State contributed an
average of 34% of the operating budgets of the 54 school districts
included in the original proposed desegregation area. In 11 of these
districts, state contributions exceeded 50% of the operating budgets.
7 See, e. g., Mich. Comp. Laws § 340.575. See also 1949-1950 Re
port of the Attorney General 104 (R oth); 1955 Report of the At
torney General 561 (Kavanaugh); 1961-1962 Report of the At
torney General 533 (Kelley).
16 MILLIKEN v. BRADLEY
local property taxation, the State has assumed the re
sponsibility to ensure equalized property valuations
throughout the State.8 The State also establishes
standards for teacher certification and teacher tenure; 9
determines part of the required curriculum; 10 11 sets the
minimum school term ;11 approves bus routes, equip
ment, and drivers;12 approves textbooks;13 and estab
lishes procedures for student discipline.14 The State
Superintendent of Public Instruction and the State
Board of Education have the power to remove local
school board members from office for neglect of their
duties.15
Most significantly for present purposes, the State has
wide-ranging powers to consolidate and merge school
districts, even without the consent of the districts them
selves or of the local citizenry.16 See, e. g., A tto rn ey
G eneral v. L ow rey, 131 Mich. 639, 92 N. W. 289 (1902),
ail’d, 199 U. S. 233 (1905). Indeed, recent years have
witnessed an accelerated program of school district con
solidations, mergers, and annexations, many of which
were state imposed. Whereas the State had 7,362 local
districts in 1912, the number had been reduced to 1,438
in 1964 and to 738 in 1968.17 By June 1972, only 608
school districts remained. Furthermore, the State has
broad powers to transfer property from one district to
8 See Mieh. Comp. Laws §§ 211.34 & 340.681.
9 Id., § 340.569.
10 Id., §§257.811 (c), 388.361, 388.371, 388.781, 388.782.
11 Id., § 340.575.
12 Id., §388.1171.
13 Id., §340.887 (1).
14 Op. Attorney General No. 4705 (July 7 ,1970).
15 See Mich. Comp. Laws § 340.253.
16 See generally Mich. Comp. Laws §§ 340.401-340.415 (consolida
tions); §§340.431-340.449 (annexations).
17 See Michigan Senate Journal, 1968, Vol. 1, at 423.
MILLIKEN v. BRADLEY 17
another, again without the consent of the local school
districts affected by the transfer.18 See, e. g., School Dis
trict o f Lansing v. State Board of Education, 367 Mich
491, 116 N. W. 2d 866 (1962); In la y Township District
v. State Board of Education, 359 Mich. 478 102 N W 2d
720 (1960).
Whatever may be the history of public education in
other parts of our Nation, it simply flies in the face of
reality to say, as does the majority, that in Michigan,
“No single tradition in public education is more deeply
rooted than local control over the operation of
schools Ante, at 22. As the State’s supreme
court has said: “We have repeatedly emphasized that
education in this State is not a local concern, but belongs
to the State at large.” Collins v. Detroit, 195 Mich. 330,
335—336, 161 N. W. 905, 907 (1917). See also Sturgis v.
C ounty o f Allegan, 343 Mich. 209, 215, 72 N. W. 2d 56,
59 (1955); Van F leet v. Oilman. 244 Mich. 241, 244, 221
N. W. 299, 301 (1928); Child Welfare Society v. School
D istrict, 220 Mich. 290, 296, 189 N. W. 1002, 1004 (1922).
Indeed, a study prepared for the 1961 Michigan consti
tutional convention noted that the Michigan constitu
tion’s articles on education had resulted in “the estab
lishment of a state system of education in contrast to a
series of local school systems.” Michigan Constitutional
Convention Studies, at 1 (1961).
In sum, several factors in this case coalesce to support
the District Court’s ruling that it was the State of Michi
gan itself, not simply the Detroit Board of Education,
which bore the obligation of curing the condition of seg
regation within the Detroit city schools. The actions
of the State itself directly contributed to Detroit’s segre
gation. Under the Fourteenth Amendment, the State
is ultimately responsible for the actions of its local
18 See generally Mich. Comp. Laws §§ 340.461-340.468.
18 MILLIKEN v. BRADLEY
agencies. And finally, given the structure of Michigan’s
educational system, Detroit’s segregation cannot be
viewed as the problem of an independent and separate
entity. Michigan operates a single statewide system of
education, a substantial part of which was shown to be
segregated in this case.
B
What action, then, could the District Court require
the State to take in order to cure Detroit’s condition of
segregation? Our prior cases have not minced words as
to what steps responsible officials and agencies must take
in order to remedy segregation in the public schools.
Not only must distinctions on the basis of race be
terminated for the future, but school officials are also
“clearly charged with the affirmative duty to take what
ever steps might be necessary to convert to a unitary
system in which racial discrimination would be elim
inated root and branch.” G reen v. C ounty School Board,
391 U. S. 430, 437-438 (1968). See also L ee v. M acon
C ounty Board o f E ducation, 267 F. Supp. 458 (MD Ala.
1967), aff’d, 389 U. S. 215. Negro students are not only
entitled to neutral nondiscriminatory treatment in the
future. They must receive “what B row n I I promised
them: a school system in which all vestiges of enforced
racial segregation have been eliminated.” W right v.
Council o f C ity o f Em poria, 407 U. S. 451, 463 (1972).
See also Swann v. Board o f E ducation, 402 U. S. 1, 15
(1971). These remedial standards are fully applicable
not only to school districts where a dual system was
compelled by statute, but also where, as here, a dual
system was the product of purposeful and intentional
state action. See K ey es , supra, 413 U. S., at 200-201.
After examining three plans limited to the city of
Detroit, the District Court correctly concluded that
none would eliminate root and branch the vestiges of
MILLIKEN v. BRADLEY 19
unconstitutional segregation. The plans’ effectiveness,
of course, had to be evaluated in the context of the Dis
trict Court s findings as to the extent of segregation in
the Detroit city schools. As indicated earlier, the most
essential finding was that Negro children in Detroit
had been confined by intentional acts of segregation to a
growing core of Negro schools surrounded by a receding
ring of white schools.19 Thus, in 1960, of Detroit’s 251
19 Despite M r . J u s t i c e S t e w a r t s claim to the contrary, at 4-5,
n. 2, of his concurring opinion, the record fully supports my state
ment that Negro students were intentionally confined to a core of
Negro schools within the city of Detroit. See, e. g,, ante, at. 4-5,
10-12. Indeed, M r. J u s t i c e S t e w a r t acknowledges that intentional
acts of segregation by the State have separated white and Negro
students within the city, and that the resulting core of all-Negro
schools has grown to encompass most of the city. In suggesting
that my approval of an inter-district remedy rests on a further con
clusion that the State or its political subdivisions have been re
sponsible for the increasing percentage of Negro students in Detroit,
my Brother S t e w a r t misconceives the thrust of this dissent. In
light of the high concentration of Negro students in Detroit, the
District Judge’s finding that a Detroit-only remedy cannot effectively
cure the constitutional violation within the city should be enough to
support the choice of an inter-district remedy. Whether state action
is responsible for the growth of the core of all-Negro schools in
Detroit is, in my view, quite irrelevant.
The difficulty with M r. J u s t i c e S t e w a r t ’ s position is that he, like
the Court, confuses the inquiry required to determine whether there
has been a substantive constitutional violation with that necessary
to formulate an appropriate remedy once a constitutional violation
has been shown. While a finding of state action is of course a pre
requisite to finding a violation, we have never held that after un
constitutional state action has been shown, the District Court at
the remedial stage must engage in a second inquiry to determine
whether additional state action exists to justify a particular remedy.
Rather, once a constitutional violation has been shown, the District
Court is duty-bound to formulate an effective remedy and, in so
doing, the court is entitled— indeed, it is required to consider all the
factual circumstances relevant to the framing of an effective decree.
Thus, in Swann we held that the District Court must take into ac-
2 0 MILLIKEN v. BRADLEY
schools, 100 were 90% or more white and 71 were 90%
or more Negro. In 1970, of Detroit’s 282 schools, 69
were 90% or more white and 133 were 90% or more
Negro. While in 1960, 68% of all schools were 90% or
more one race, by 1970, 71.6% of the schools fell into
that category. The growing core of all-Negro schools
was further evidenced in total school district population
figures. In 1960 the Detroit district had 46% Negro
students and 54% white students, but by 1970, 64% of
the students were Negro and only 36% were white. This
increase in the proportion of Negro students was the
highest of any major northern city.
It was with these figures in the background that the
District Court evaluated the adequacy of the three
Detroit-only plans submitted by the parties. Plan A,
proposed by the Detroit Board of Education, desegre
gated the high schools and about a fifth of the middle
level schools. It was deemed inadequate, however, be
cause it did not desegregate elementary schools and left
the middle level schools not included in the plan more
segregated than ever. Plan C, also proposed by the
Detroit Board, was deemed inadequate because it too
covered only some grade levels and would leave ele
mentary schools segregated. Plan B, the plaintiffs’ plan,
though requiring the transportation of 82,000 pupils and
the acquisition of 900 school buses, would make little
headway in rooting out the vestiges of segregation. To
count the existence of extensive residential segregation in determin
ing whether a racially neutral “neighborhood school” attendance plan
was an adequate desegregation remedy, regardless of whether this
residential segregation was caused by state action. So here, the
District Court was required to consider the facts that the Detroit
school system was already predominently Negro and would likely
become all-Negro upon issuance of a Detroit-only decree in framing
an effective desegregation remedy, regardless of state responsibility
for this situation.
MILLIKEN v. BRADLEY 21
begin with, because of practical limitations, the District
Court found that the plan would leave many of the De
troit city schools 75 to 90 percent Negro, More sig
nificantly, the District Court recognized that in the con
text of a community which historically had a school
system marked by rigid de jure segregation, the likely
effect of a Detroit-only plan would be to “change a
school system which is now Black and White to one
that would be perceived as Black . . . The result of
this changed perception, the District Court found,
would be to increase the flight of whites from the city to
the outlying suburbs, compounding the effects of the
present rate of increase in the proportion of Negro stu
dents in the Detroit system. Thus, even if a plan were
adopted which, at its outset, provided in every school a
65% Negro-35 % white racial mix in keeping with the
Negro-white proportions of the total student population,
such a system would, in short order, devolve into an all-
Negro system. The net result would be a continuation
of the all-Negro schools which were the hallmarks of
Detroit’s former dual system of one-race schools.
Under our decisions, it was clearly proper for the
District Court to take into account the so-called “white
flight” from the city schools which would be forthcoming
from any Detroit-only decree. The Court’s prediction
of white flight was well supported by expert testimony
based on past experience in other cities undergoing de
segregation relief. We ourselves took the possibility of
white flight into account in evaluating the effective
ness of a desegregation plan in W right, supra,
where we relied on the District Court’s finding that if
the city of Emporia were allowed to withdraw from the
existing system, leaving a system with a higher propor
tion of Negroes, it “may be anticipated that the pro
portion of whites in county schools may drop as those
2 2 MILLIKEN v. BRADLEY
who can register in private academies . . . 4 0 7 U. S., at
464. One cannot ignore the white-flight problem, for
where legally imposed segregation has been established,
the District Court has the responsibility to see to it not
only that the dual system is terminated at once but
also that future events do not serve to perpetuate or
re-establish segregation. See Swann, supra, 402 U. S., at
21. See also G reen, supra, 391 U. S., at 438 n. 4 ; M on
roe v. Board o f Com m issioners, 391 U. S. 450, 459 (1968).
We held in Swann that where de jure segregation is
shown, school authorities must make “every effort to
achieve the greatest possible degree of actual desegre
gation.” 402 U. S., at 26. This is the operative stand
ard re-emphasized in D avis v. Board o f School Com m is
sioners, 402 U. S. 33, 37 (1971). If these words have any
meaning at all, surely it is that school authorities must,
to the extent possible, take all practicable steps to en
sure that Negro and white children in fact go to school
together. This is, in the final analysis, what desegrega
tion of the public schools is all about.
Because of the already high and rapidly increasing
percentage of Negro students in the Detroit system, as
well as the prospect of white flight, a Detroit-only plan
simply has no hope of achieving actual desegregation.
Under such a plan white and Negro students will not go
to school together. Instead, Negro children will con
tinue to attend all-Negro schools. The very evil that
B row n I was aimed at will not be cured, but will be
perpetuated for the future.
Racially identifiable schools are one of the primary
vestiges of state-imposed segregation which an effective
desegregation decree must attempt to eliminate. In
Swann, for example, we held that “The district judge
or school authorities . . . will thus necessarily be con
cerned with the elimination of one-race schools.” 402
U. S., at 26. There is “ a presumption,” we stated, “against
MILLIKEN v. BRADLEY 23
schools that are substantially disproportionate in their
racial composition.” Ibid. And in evaluating the ef
fectiveness of desegregation plans in prior cases, we our
selves have considered the extent to which they discon
tinued racially identifiable schools. See, e. g., G reen v.
C ou n ty School Board, supra; W right v. Council o f C ity
o f Em poria, supra. For a principal end of any desegre
gation remedy is to ensure that it is no longer “possible
to identify a 'white school’ or a ‘Negro school.’ ” Swann,
supra, 402 U. S., at 18. The evil to be remedied in the
dismantling of a dual system is the “ [rjacial identifica
tion of the system’s schools.” G reen, supra, 391 U. S.,
at 435. The goal is a system without white schools or
Negro schools—a system with “just schools.” Id., at
442. A school authority’s remedial plan or a district
court’s remedial decree is to be judged by its effectiveness
in achieving this end. See Swann, 402 U. S., at 25;
D avis, supra, 402 U. S., at 37; G reen, supra, 391 U. S.,
at 439.
We cautioned in Swann, of course, that the dis
mantling of a segregated school system does not mandate
any particular racial balance. 402 U. S., at 24. We
also concluded that a remedy under which there would
remain a small number of racially identifiable schools
was only presumptively inadequate and might be justi
fied. Id ., at 26. But this is a totally different case.
The flaw of a Detroit-only decree is not that it does not
reach some ideal degree of racial balance or mixing. It
simply does not promise to achieve actual desegregation
at all. It is one thing to have a system where a small
number of students remain in racially identifiable
schools. It is something else entirely to have a system
where all students continue to attend such schools.
The continued racial identifiability of the Detroit
schools under a Detroit-only remedy is not simply a re
flection of their high percentage of Negro students.
24 M ILLIKEN v. BRADLEY
What is or is not a racially identifiable vestige of de jure
segregation must necessarily depend on several factors.
Cf. K ey es , supra, 413 U. S., at 196. Foremost among
these should be the relationship between the schools in
question and the neighboring community. For these
purposes the city of Detroit and its surrounding suburbs
must be viewed as a single community. Detroit is
closely connected to its suburbs in many ways, and the
metropolitan area is viewed as a single cohesive unit by
its residents. About 40% of the residents of the two
suburban counties included in the desegregation plan
work in Wayne County, in which Detroit is situated.
Many residents of the city work in the suburbs. The
three counties participate in a wide variety of coopera
tive governmental ventures on a metropolitan-wide
basis, including a metropolitan transit system, park
authority, water and sewer system, and council of gov
ernments. The Federal Government has classified the
tri-county area as a Standard Metropolitan Statistical
Area, indicating that it is an area of “economic and
social integration.” U nited S tates v. C onnecticu t N a t’l
B a n k ,---- U. S . -----, ----- (June 26, 1974).
Under a Detroit-only decree, Detroit’s schools will
clearly remain racially identifiable in comparison with
neighboring schools in the metropolitan community.
Schools with 65% and more Negro students will stand
in sharp and obvious contrast to schools in neighboring
districts with less than 2% Negro enrollment. Negro
students will continue to perceive their schools as segre
gated educational facilities and this perception will only
be increased when whites react to a Detroit-only decree
by fleeing to the suburbs to avoid integration. School
district lines, however innocently drawn, will surely be
perceived as fences to separate the races when, under a
Detroit-only decree, white parents withdraw their chil
MILLIKEN v. BRADLEY 25
dren from the Detroit city schools and move to the
suburbs in order to continue them in all-white schools.
The message of this action will not escape the Negro
children in the city of Detroit. See W right, supra, 407
TJ, S., at 466. It will be of scant significance to Negro
children wdio have for years been confined by de jure
acts of segregation to a growing core of all-Negro schools
surrounded by a ring of all-white schools that the new
dividing line between the races is the school district
boundary.
Nor can it be said that the State is free from any re
sponsibility for the disparity between the racial makeup
of Detroit and its surrounding suburbs. The State’s
creation, through de jure acts of segregation, of a grow
ing core of all-Negro schools inevitably acted as a magnet
to attract Negroes to the areas served by such schools
and to deter them from settling either in other areas
of the city or in the suburbs. By the same token, the
growing core of all-Negro schools inevitably helped
drive whites to other areas of the city or to the suburbs.
As we recognized in Swann,
“ People gravitate toward school facilities, just as
schools are located in response to the needs of
people. The location of schools may thus influence
the patterns of residential development of a metro
politan area and have important impact on compo
sition of innercity neighborhoods. . . . [Action
taken] to maintain the separation of the races with
a minimum departure from the formal principles of
‘neighborhood zoning’ . . . does more than simply
influence the short-run composition of the student
body . . . . It may well promote segregated resi
dential patterns which, when combined with ‘neigh
borhood zoning,’ further lock the school system into
the mold of separation of the races. Upon a proper
26 MILLIKEN v. BRADLEY
showing a district court may consider this in fash
ioning a remedy.” 402 U. S., at 20-21. See also
Keyes, supra, 413 U. S., at 202.
The rippling effects on residential patterns caused by
purposeful acts of segregation do not automatically sub
side at the school district border. With rare exceptions,
these effects naturally spread through all the residential
neighborhoods within a metropolitan area. See Keyes,
supra, 413 U. S., at 202-203.
The State must also bear part of the blame for
the white flight to the suburbs which would be forth
coming from a Detroit-only decree and would render
such a remedy ineffective. Having created a system
where whites and Negroes were intentionally kept apart
so that they could not become accustomed to learning to
gether, the State is responsible for the fact that many
whites will react to the dismantling of that segregated
system by attempting to flee to the suburbs. Indeed,
by limiting the District Court to a Detroit-only remedy
and allowing that flight to the suburbs to succeed, the
Court today allows the State to profit from its own
wrong and to perpetuate for years to come the separation
of the races it achieved in the past by purposeful state
action.
The majority asserts, however, that involvement of
outlying districts would do violence to the accepted
principle that “the nature of the violation determines the
scope of the remedy.” 402 U. S., at 16. See ante, at 25.
Not only is the majority’s attempt to find in this single
phrase the answer to the complex and difficult questions
presented in this case hopelessly simplistic, but more
importantly, the Court reads these words in a manner
which perverts their obvious meaning. The nature of
a violation determines the scope of the remedy simply
because the function of any remedy is to cure the vio
MILLIKEN v. BRADLEY 27
lation to which it is addressed. In school segregation
cases, as in other equitable causes, a remedy which ef
fectively cures the violation is what is required. See
Green, supra, 391 U. S., at 439; Davis, supra, 402 U. S.,
at 37. No more is necessary, but we can tolerate no
less. To read this principle as barring a District Court
from imposing the only effective remedy for past segre
gation and remitting the court to a patently ineffective
alternative is, in my view, to turn a simple commonsense
rule into a cruel and meaningless paradox. Ironically, by
ruling out an inter-district remedy, the only relief which
promises to cure segregation in the Detroit public schools,
the majority flouts the very principle on which it pur
ports to rely.
Nor should it be of any significance that the suburban
school districts were not shown to have themselves taken
any direct action to promote segregation of the races.
Given the State’s broad powers over local school districts,
it was well within the State’s powers to require those
districts surrounding the Detroit school district to par
ticipate in a metropolitan remedy. The State’s duty
should be no different here than in cases where it is
shown that certain of a State’s voting districts are mal-
apportioned in violation of the Fourteenth Amendment.
See Reynolds v. Sims, 377 U. S. 533 (1964). Overrepre
sented electoral districts are required to participate in
reapportionment although their only “participation” in
the violation was to do nothing about it. Similarly,
electoral districts which themselves meet representation
standards must frequently be redrawn as part of a rem
edy for other over- and under-inclusive districts. No
finding of fault on the part of each electoral district and
no finding of a discriminatory effect on each district is a
prerequisite to its involvement in the constitutionally
required remedy. By the same logic, no finding of fault
28 MILLIKEN v. BRADLEY
on the part of the suburban school districts in this case
and no finding of a discriminatory effect on each district
should be a prerequisite to their involvement in the con
stitutionally required remedy.
It is the State, after all, which bears the re
sponsibility under Brown of affording a nondiscrimina-
tory system of education. The State, of course, is ordi
narily free to choose any decentralized framework for
education it wishes, so long as it fulfills that Fourteenth
Amendment obligation. But the State should no more
be allowed to hide behind its delegation and compart-
mentalization of school districts to avoid its constitu
tional obligations to its children than it could hide be
hind its political subdivisions to avoid its obligations to
its voters. Reynolds v. Sims, supra, 377 U. S., at 575.
See also Gomillion v. Lightfoot, 364 U. S. 339 (1960).
It is a hollow remedy indeed where “after supposed ‘de
segregation’ the schools are segregated in fact.” Hobson
v. Hansen, 269 F. Supp. 401, 495 (D. D. C. 1967). We
must do better than “substitute . . . one segregated school
system for another segregated school system.” Wright,
supra, 407 U. S., at 456. To suggest, as does the majority,
that a Detroit-only plan somehow remedies the effects of
de jure segregation of the races is, in my view, to make
a solemn mockery of Brown I ’s holding that separate
educational facilities are inherently unequal and of
Swann’s unequivocal mandate that the answer to de jure
segregation is the greatest possible degree of actual
desegregation.
Ill
One final set of problems remains to be considered.
We recognized in Brown II, and have re-emphasized ever
since, that in fashioning relief in desegregation cases,
“ the courts will be guided by equitable principles. Tra
ditionally equity has been characterized by a practical
flexibility in shaping its remedies and by a facility for
MILLIKEN v. BRADLEY 29
adjusting and reconciling public and private needs.”
Brown II, supra, 349 U. S., at 300. See also Swann,
supra.
Though not resting its holding on this point, the ma
jority suggests that various equitable considerations mili
tate against inter-district relief. The Court refers to,
for example, financing and administrative problems, the
logistical problems attending large-scale transportation
of students, and the prospect of the District Court’s be
coming a “de facto legislative authority’ ” and “ ‘school
superintendent’ for the entire area.’ ” Ante, at 24. The
entangling web of problems woven by the Court, how
ever, appears on further consideration to be constructed
of the flimsiest of threads.
I deal first with the last of the problems posed by the
Court—the spectre of the District Court qua “ school
superintendent” and “ legislative authority”—for analysis
of this problem helps put the other issues in proper per
spective. Our cases, of course, make clear that the initial
responsibility for devising an adequate desegregation
plan belongs with school authorities, not with the District
Court. The court’s primary role is to review the ade
quacy of the school authorities’ efforts and to substitute
its own plan only if and to the extent they default. See
Sivann, supra, 402 U. S., at 16; Green, supra, 391 U. S.,
at 439. Contrary to the majority’s suggestions, the Dis
trict Judge in this case has consistently adhered to these
procedures and there is every indication that he would
continue to do so. After finding de jure segregation the
Court ordered the parties to submit proposed Detroit-
only plans. The state defendants were also ordered to
submit a proposed metropolitan plan extending beyond
Detroit’s boundaries. As the District Court stated, “the
htate defendants . . . bear the initial burden of coming
forward with a proposal that promises to work.” The
state defendants defaulted in this obligation, however.
30 MILLIKEN v. BRADLEY
Rather than submit a complete plan, the State Board of
Education submitted six proposals, none of which was in
fact a desegregation plan. It was only upon this default
that the District Court began to take steps to develop its
own plan. Even then the District Court maximized
school authority participation by appointing a panel rep
resenting both plaintiffs and defendants to develop a
plan. App. 99a-100a. Furthermore, the District Court
still left the state defendants the initial responsibility for
developing both interim and final financial and admin
istrative arrangements to implement inter-district relief.
App. 104a-105a. The Court of Appeals further pro
tected the interests of local school authorities by ensuring
that the outlying suburban districts could fully partici
pate in the proceedings to develop a metropolitan remedy.
These processes have not been allowed to run their
course. No final desegregation plan has been proposed
by the panel of experts, let alone approved by the Dis
trict Court. We do not know in any detail how many
students will be transported to effect a metropolitan rem
edy, and we do not know how long or how far they will
have to travel. No recommendations have yet been sub
mitted by the state defendants on financial and admin
istrative arrangements. In sum, the practicality of a
final metropolitan plan is simply not before us at the
present time. Since the State and the panel of experts
have not yet had an opportunity to come up with a work
able remedy, there is no foundation for the majority’s
suggestion of the impracticality of inter-district relief.
Furthermore, there is no basis whatever for assuming
that the District Court will inevitably be forced to as
sume the role of legislature or school superintendent.20
20 In fact, the District Court remarked “that this Court’s task is to
enforce constitutional rights not to act as a schoolmaster; the
Court’s task is to protect the constitutional rights here found vio-
MILLIKEN v. BRADLEY 31
Were we to hold that it was its constitutional duty to
do so, there is every indication that the State of Michi
gan would fulfill its obligation and develop a plan which
is workable, administrable, financially sound and, most
important, in the best interest of quality education for
all of the children in the Detroit metropolitan area.
Since the Court chooses, however, to speculate on the
feasibility of a metropolitan plan, I feel constrained to
comment on the problem areas it has targeted. To begin
with, the majority’s questions concerning the practicality
of consolidation of school districts need not give us pause.
The State clearly has the power, under existing law, to
effect a consolidation if it is ultimately determined that
this offers the best prospect for a workable and stable
desegregation plan. See ante, at 16-17. And given the
1,000 or so consolidations of school districts which have
taken place in the past, it is hard to believe that the State
has not already devised means of solving most, if not all,
of the practical problems which the Court suggests con
solidation would entail.
Furthermore, the majority ignores long-established
Michigan procedures under which school districts may
enter into contractual agreements to educate their pupils
in other districts using state or local funds to finance non
resident education.21 Such agreements could form an
easily administrable framework for inter-district relief
lated with as little intrusion into the education process as possible.
The Court’s objective is to establish the minimum constitutional
framework within which the system of public schools may operate
now and hereafter in a racially unified, non-discriminatory fashion.
Within that framework the body politic, educators, parents, and
most particularly children must be given the maximum opportunity
to experiment and secure a high quality, and equal, educational
opportunity.” App., at 82a.
21 See, e. g., Mich. Comp. Laws §§340.69, 340.121 (d), 340.359,
340.582, 340.582 (a), 340.590.
32 MILLIKEN v. BRADLEY
short of outright consolidation of the school districts.
The District Court found that inter-district procedures
like these were frequently used to provide special educa
tional services for handicapped children, and extensive
statutory provision is also made for their use in vocational
education.22 Surely if school districts are willing to en
gage in inter-district programs to help those unfortunate
children crippled by physical or mental handicaps, school
districts can be required to participate in an inter-district
program to help those children in the city of Detroit
whose educations and very futures have been crippled
by purposeful state segregation.
Although the majority gives this last matter only fleet
ing reference, it is plain that one of the basic emotional
and legal issues underlying these cases concerns the pro
priety of transportation of students to achieve desegre
gation. While others may have retreated from its stand
ards, see, e. g., Keyes, supra, 413 U. S., at 217 ( P o w e l l , J.,
concurring in part and dissenting in part), I continue to
adhere to the guidelines set forth in Swarm on this issue.
See 402 U. S., at 29-31. And though no final desegrega
tion plan is presently before us, to the extent the outline
of such a plan is now visible, it is clear that the transpor
tation it wTould entail will be fully consistent with these
guidelines.
First of all, the metropolitan plan would not involve
the busing of substantially more students than already
ride buses. The District Court found that statewide,
3 5 ^ 0 percent of all students already arrive at school on
a bus. In those school districts in the tri-county Detroit
metropolitan area eligible for state reimbursement of
transportation costs, 42-52 percent of all students rode
buses to school. In the tri-county areas as a whole, ap
proximately 300,000 pupils arrived at school on some type
of bus, with about 60,000 of these apparently using regu
22 See Mich. Comp. Laws §§ 340.330-330.330u.
MILLIKEN v. BRADLEY 33
lar public transit. In comparison, the desegregation
plan, according to its present rough outline, would in
volve the transportation of 310,000 students, about 40%
of the population within the desegregation area.
With respect to distance and amount of time travelled,
17 of the outlying school districts involved in the plan
are contiguous to the Detroit district. The rest are all
within 8 miles of the Detroit city limits. The trial court,
in defining the desegregation area, placed a ceiling of 40
minutes one way on the amount of travel time, and many
students will obviously travel for far shorter periods. As
to distance, the average statewide bus trip is 8% miles
one way, and in some parts of the tri-county area, stu
dents already travel for one and a quarter hours or more
each way. In sum, with regard to both the number of
students transported and the time and distances involved,
the outlined desegregation plan “compares favorably
with the transportation plan previously operated . . .
Swann, supra, 402 U. S., at 30.
As far as economics are concerned, a metropolitan rem
edy would actually be more sensible than a Detroit-only
remedy. Because of prior transportation aid restrictions,
see ante, at 11-12, Detroit largely relied on public trans
port, at student expense, for those students who lived too
far away to walk to school. Since no inventory of school
buses existed, a Detroit-only plan was estimated to re
quire the purchase of 900 buses to effectuate the neces
sary transportation. The tri-county area, in contrast,
already has an inventory of 1,800 buses, many of which
are now underutilized. Since increased utilization of the
existing inventory can take up much of the increase in
transportation involved in the inter-district remedy, the
District Court found that only 350 additional buses would
probably be needed, almost two-thirds fewer than a De
troit-only remedy. Other features of an inter-district
remedy bespeak its practicality, such as the possibility of
pairing up Negro schools near Detroit's boundary with
34 MILLIKEN v. BRADLEY
nearby white schools on the other side of the present
school district line,
Some disruption, of course, is the inevitable product
of any desegregation decree, whether it operates within
one district or on an inter-district basis. As we said in
Swann, however,
■'Absent a constitutional violation there would be
no basis for judicially ordering assignment of stu
dents on a racial basis. All things being equal, with
no history of discrimination, it might well be desir
able to assign pupils to schools nearest their homes.
But all things are not equal in a system that has
been deliberately constructed and maintained to en
force racial segregation. The remedy for such segre
gation may be administratively awkard, inconveni
ent, and even bizarre in some situations and may
impose burdens on some; but all awkwardness and
inconvenience cannot be avoided . . . .” 402 U. S.,
at 28.
Desegregation is not and was never expected to be an
easy task. Racial attitudes ingrained in our Nation’s
childhood and adolescence are not quickly thrown aside
in its middle years. But just as the inconvenience of
some cannot be allowed to stand in the way of the rights
of others, so public opposition, no matter how strident,
cannot be permitted to divert this Court from the en
forcement of the constitutional principles at issue in this
case. Today’s holding, I fear, is more a reflection of a
perceived public mood that we have gone far enough in
enforcing the Constitution’s guarantee of equal justice
than it is the product of neutral principles of law. In
the short run, it may seem to be the easier course to al
low our great metropolitan areas to be divided up each
into two cities—one white, the other black—but it is a
course, I predict, our people will ultimately regret. I
dissent.